Court File and Parties

Court File No.: CR 18-17 Date: 2018/12/14 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Kayne Robinson, Defendant

Counsel: L. Van Gorder, for the Crown G. Clark, for the Defendant

Heard: December 3 and 4, 2018

Reasons for Decision

M. G. Ellies J.

[1] Kayne Robinson is charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1995, c. 19 (the “CDSA”), and with possession of property of a value over $5,000, namely cash, knowing it was obtained by the commission in Canada of an indictable offence, namely trafficking, contrary to s. 354(1)(a) of the Criminal Code, R.S.C. 1986, c. C-46. A third charge, possession of cannabis marihuana contrary to s. 4(1) of the CDSA, was withdrawn by the Crown at trial for reasons I will elaborate upon below.

[2] At the conclusion of the trial, I found Mr. Robinson not guilty of the first two charges for reasons to follow. These are those reasons.

The Crown’s Case

[3] The charges in question resulted from Mr. Robinson’s arrest during the execution of a search warrant on January 31, 2017. On that date, at about 11:30 p.m., members of the North Bay Police Service executed a search warrant issued under the CDSA at an apartment located on Fourth Avenue in the City of North Bay. The day before, they had obtained information that the occupant of the residence, one James Stevens, was in possession of a quantity of drugs for sale. Beginning at about 10:25 a.m. on the 31st, the police began surveillance of the Stevens residence. They observed a number of people, some of whom were known to the police as drug users, coming and going from the residence. As a result of the information they received and the observations they made, the police applied for and were granted a search warrant at about 10:10 p.m. that night.

[4] The police had a hard time getting into the Stevens residence. The door that they chose to enter at the back of the residence had been barricaded using a 2” x 6” piece of lumber that was wedged between the door and the wall behind it. In order to enter, they were required to more-or-less forcibly “fold” the top of the door backwards and to step over an electric bicycle that was laying on the floor behind it. As a result, they lost time and, with it, the element of surprise they were hoping for.

[5] As they entered, one of the officers shouted “police” and continued to do so as the search team moved quickly through the apartment. The first two members of the search team proceeded through the main floor of the apartment and headed downstairs, while the officers behind them arrested Stevens, whom they found in a main floor bedroom.

[6] The first in line as they headed downstairs was Officer Weber, who was holding an automatic weapon. Right behind him was Officer Shepstone. They passed a bathroom and a laundry room next to which was a bedroom. Officer Weber entered the bedroom, in which he found Mr. Robinson. The officer testified that Mr. Robinson was sitting on the bed and described him as looking shocked. He told Mr. Robinson not to move. He approached Mr. Robinson, rolled him over face down on the bed, and placed his knee on Mr. Robinson's back. Officer Shepstone then entered the room. That is where the evidence begins to diverge.

[7] Both Officer Shepstone and Officer Weber testified that Officer Shepstone then took control of Mr. Robinson, placing him in handcuffs. According to Officer Weber, he then advised Mr. Robinson that he was under arrest for trafficking. According to both officers, a steak knife was found on the bed underneath where Mr. Robinson had been made to lie face down. According to Officer Weber, Mr. Robinson was then quickly frisk-searched for weapons and turned over to Officer Shepstone for a more thorough search.

[8] Officer Shepstone testified that he then proceeded to search Mr. Robinson right there in the bedroom in the basement. He said that, located in Mr. Robinson's pants pockets, he found a sum of Canadian currency and a plastic bag containing a white powder, which subsequent analysis proved was cocaine. That cocaine was later weighed at 13.6 g. According to Officer Shepstone, while he was in the bedroom, he also saw a bag of cannabis marijuana on the bed where Mr. Robinson had been laying, which was subsequently analyzed and weighed at 8.2 g.

[9] According to both officers, Mr. Robinson was brought upstairs by Officer Shepstone, who testified that a further pat-down search of Mr. Robinson was conducted as a secondary precaution before he was handed over to another officer outside the residence.

[10] Both Officers returned to the basement to search it. Officer Weber testified that he seized the cannabis marijuana referred to earlier, a cellphone also located on the bed and an electronic weigh scale found underneath it. Officer Shepstone testified that, using a chair to look above a drop ceiling in the area of the laundry room, he located two things. One was a sock containing a sum of Canadian currency. The other was a grocery bag inside of which was another clear bag that was later determined to contain 122.7 g of cocaine. All of these items were seized.

[11] Mr. Robinson was transported to police headquarters. It would appear that he was ultimately released to await trial on the charges.

The Crown's Theory

[12] The Crown alleges that Mr. Robinson is a mid-level drug dealer who travelled to North Bay to sell the cocaine they found that night to street-level users using Stevens' home and his contacts in the local drug culture. In support of that theory, the Crown called as a witness Detective Constable Clinton Belanger, a 29 year veteran of the Ontario Provincial Police ("OPP"), who is presently stationed in Sudbury. Following a voir dire, I permitted Officer Belanger to give expert evidence with respect to whether the evidence obtained during the execution of the search warrant on January 31, 2017 is consistent with possession of the cocaine for the purpose of trafficking.

[13] Officer Belanger testified about the value of cocaine sold in various quantities. According to his evidence, depending upon the amount of cocaine sold at one time, the value of the cocaine allegedly found in Mr. Robinson's pocket ranged between $1,000 and $1,360. Although he was not asked specifically about the value of the cocaine found hidden in the ceiling, based on Officer Belanger's evidence, it had a value of between approximately $8,700 and $12,200. There was no real issue at trial that whoever possessed the cocaine found in the ceiling possessed it for the purpose of trafficking. The issues were two-fold: (1) was the cocaine found that night in the possession of Mr. Robinson, and (2) if so, was the cocaine allegedly found on Mr. Robinson possessed for the purpose of trafficking?

[14] In addition to testifying about the value of cocaine, Officer Belanger testified about the practice of some dealers who are not content to turn a larger quantity of cocaine over to a lower-level dealer for sale on their behalves. He said that such dealers will often travel from a larger centre to a smaller one and remain there while the drugs are sold to street-level users. He testified that he had never seen anyone purchase half an ounce of cocaine (14 g, which is roughly the amount allegedly found in Mr. Robinson's pocket) for personal consumption. In his opinion, the amount of cocaine allegedly found in Mr. Robinson's pocket was there for the purpose of trafficking.

The Defence

[15] Mr. Robinson testified as the only witness called by the defence. He is 23 years old. He was born and raised in Toronto. He testified that, on January 17, 2017 his grandmother had passed away. He said that he was very close to her and her death had devastated him. He was angry at his aunts for having "pulled the plug" on his grandmother's palliative care, which I assume means that he thought they had precipitated her death.

[16] Mr. Robinson was friends with Cassandra Couch, whom he met at a club in 2015 or so. The two of them were romantically involved, but not as boyfriend and girlfriend, although he said that Ms. Couch would have liked them to be.

[17] Ms. Couch is the daughter of James Stevens and Patty Couch. Patty Couch was one of the people whom the police observed coming and going from the Fourth Street residence during the surveillance they maintained of that residence on January 31.

[18] Cassandra Couch was living in the Toronto area at the time. She suggested to Mr. Robinson that he come up with her to North Bay to get away from Toronto. As he had never been to North Bay, he decided to take her up on the offer and the two of them drove up in Ms. Couch's car.

[19] Mr. Robinson testified that they arrived at the Fourth Street residence between 7 and 8 p.m. He said that it was the longest drive he had ever been on and he was tired and his back was sore when they finally arrived. He testified that, when they got to the residence, he met Ms. Couch's father, but her mother was not there. Ms. Couch suggested that Mr. Robinson lie down in her step-brother's room in the basement while she went out to find her mother. Mr. Robinson agreed and went down to the bedroom, which he testified was poorly lit. He said he fell asleep on the bed, propped up on the pillows with one foot on the floor and one foot on the bed. He woke up to find a gun with a flashlight attached to it pointed at him.

[20] Mr. Robinson testified that he was told he was being arrested. The officer holding what looked like a machine gun flipped him over onto his stomach and he felt what he thought was a knee on his back and something hard pressed against his head. There were two officers, the one with the machine gun and another with a handgun. Mr. Robinson felt two sets of hands pat him down while he was on the bed. He testified that he had nothing on him and nothing was seized.

[21] The officers then stood him up. He said he did not see the knife that the police say was on the bed. The officer with the machine gun turned him around to look outside the door of the bedroom. The other officer told him it was cold outside and gave him a black jacket to put on. Mr. Robinson said his hands were not yet cuffed, but they were held behind his back by the police while he put first one arm and then the other arm into the sleeves. He was then taken from the basement to the living room. Because he was so focused on the guns, Mr. Robinson was unable to identify Officer Weber and Officer Shepstone as the officers that arrested him.

[22] Once upstairs, Mr. Robinson was asked his name and date of birth, both of which he provided. He was searched at that time. The officers took his keys, headphones, wallet and the cash he had in his pockets and put them in a pile on the floor. They then searched the jacket he had been given to put on. In the pocket, they found the 13.6 g of cocaine, which they also threw on the floor. Mr. Robinson was then transported to the police headquarters, where he was interviewed, and from there he was transported to the local jail.

[23] The jacket was introduced into evidence by the defence. Mr. Robinson testified that it was not his. He was shown a photo taken by the police of another jacket, which is shown draped over the electronic bicycle I mentioned above, and he identified that as his jacket. He testified that he never sought to get that jacket back from the police because he felt he had enough to worry about given the charges he was facing.

[24] Mr. Robinson denied that any of the cocaine seized that night was his. He testified that he has never even seen cocaine before, let alone possessed it.

Analysis

[25] In order to succeed, the Crown must prove, first and foremost, that the cocaine found that night was in the possession of Mr. Robinson, either actually or constructively.

[26] Because Mr. Robinson testified that the cocaine was not possessed by him, he must be acquitted if I believe him. Even if I do not believe him, if I am left with a reasonable doubt by his evidence, I must acquit him. Even if I am not left with a reasonable doubt by his evidence, I must acquit Mr. Robinson if I am left with a reasonable doubt about his guilt on the basis of the evidence that I do accept: R. v. W.(D.), [1991] 1 S.C.R. 742.

[27] I am not sure that I believe Mr. Robinson. It seems odd that Ms. Couch would leave him alone in a home he had never been to from the time he went to have a nap, at approximately 8:00 p.m., until the time at which he was arrested, shortly after 11:30 p.m. However, the evidence of the police seems to support this aspect of his evidence. Officer Weber testified that Mr. Robinson seemed shocked when he entered the room, notwithstanding all of the noise that would have been made by the police while breaking the door down and shouting "police" as they rushed through the house. The fact that Mr. Robinson was sleeping would also explain why he did not do more to hide the cannabis marijuana that I accept was found on the bed, if in fact it was his.

[28] I also have a hard time understanding why the real owner of the smaller bag of cocaine would leave it in a coat pocket, rather than hide it somewhere more secure.

[29] Nonetheless, notwithstanding these problems with Mr. Robinson's evidence, I am left with a reasonable doubt by it. The main reasons why are as follows:

(1) There was a gap in the surveillance undertaken of the Stevens residence on January 31 at the time that Mr. Robinson said he and Ms. Couch arrived. In particular, Officer Shepstone testified in cross-examination that he had to break off surveillance at 7:10 p.m. to attend to a personal matter and resumed surveillance at 8:48 p.m. While Officer Weber testified that he was also involved in surveillance of the residence that day, he never provided any details that would fill in that gap.

(2) There is a glaring conflict in the evidence of the two police officers with respect to where the 13.6 g of cocaine was seized. Officer Shepstone testified that Mr. Robinson was searched and the cocaine was found in his pant pocket while he was in the bedroom. Officer Weber, on the other hand, testified that he did not see anything seized from Mr. Robinson while they were in the bedroom, notwithstanding that Mr. Robinson was patted down while on the bed. Because I was never shown what 13.6 g of cocaine looks like in a plastic bag – not even in a photograph – I cannot say with certainty that I would expect the cocaine to have been found during the pat-down search. However, what I can say is that the evidence of Officer Weber is consistent with that of Mr. Robinson and inconsistent with that of Officer Shepstone.

(3) The evidence that Mr. Robinson was given a coat for transportation from the Stevens residence to the police station was not contradicted by any of the police witnesses who were present that night. While none of them could recall whether Mr. Robinson was given a coat or, if he was, what coat he was given, none of them could deny that he might have been. Further, notwithstanding the fact that all of the police witnesses were asked in cross-examination about the possibility that Mr. Robinson had been given a coat to wear, none of them were asked whether, if Mr. Robinson had been given a coat, it would have been searched before he put it on.

(4) The evidence of the scene of Mr. Robinson's arrest was at odds with the theory of the Crown's case. In support of the theory that the cocaine found downstairs was possessed for trafficking purposes and not for personal consumption, the Crown relied on the fact that there was no evidence of personal consumption found in the bedroom, such as small spoons, pen casings or rolling papers with which to sniff it. However, Officer Belanger testified that a mid-level dealer will often sell smaller quantities of cocaine to users who consume it in the presence of the dealer. Further, in response to questions put by me to Officer Belanger, he testified that, when cocaine is not consumed at the location at which it is purchased, it is usually transported by the purchaser in cellophane, tin foil or small plastic ("dime") bags that are supplied by the seller. There is no evidence that any of these things were found in the bedroom, either.

(5) The weigh scales that allegedly contained cocaine powder were never tested to confirm that. Nor were they, or any other item seized at the Stevens residence, ever examined for fingerprints or DNA. There is no forensic evidence linking Mr. Robinson to the cocaine, the money, or any item that might be used to sell cocaine. Indeed, there was no evidence even as to the amount of the money that was found, whether on Mr. Robinson, or in the ceiling.

(6) Finally, I am also influenced by the way in which Mr. Robinson gave his evidence. He was believable, even if I have problems with some of his testimony.

[30] Because I am left with a reasonable doubt by Mr. Robinson's evidence about the cocaine, he must be found not guilty with respect to those counts. I return now to the count relating to the possession of cannabis marijuana.

Jurisdiction of the Superior Court Over Summary Conviction Offences

[31] At the outset of the trial, I raised an issue as to this court's jurisdiction over the count in the indictment relating to the marijuana found on the bed. Because the amount alleged is 30 g or less, that count is strictly a summary conviction offence. As I pointed out to counsel, our Court of Appeal has held on several occasions that the Superior Court has no jurisdiction to try a summary conviction offence, even when charged on the same indictment as other, indictable, offences: R. v. D.M.E., 2014 ONCA 496, at para. 66.

[32] At the conclusion of the trial, I indicated that, even if this court had jurisdiction over the count in question, I would have acquitted Mr. Robinson for the same reasons that I acquitted him on the counts relating to the possession of cocaine. The Crown then graciously offered to withdraw the count in question, but asked that I give some guidance on the court's jurisdiction. He indicated that he had obtained opinions from other counsel to the effect that the court could, if it chose to do so, assume jurisdiction over the offence, notwithstanding its summary nature.

[33] As the court pointed out in D.M.E., at para. 65, some authorities have held that enabling legislation such as s. 5 of the Justices of the Peace Act, R.S.O. 1990, c. J.4, permits a judge of a superior court of criminal jurisdiction to exercise the powers of a justice of the peace: R. v. Vincent, 2008 ONCA 76, at paras. 12-13; and R. v. Sharma, [1995] B.C.J. No. 2680 (C.A.), at para. 24. Under s. 2 of the Criminal Code, justices of the peace are included in the definition of “justice”, as are provincial court judges. However, as the court also pointed out, at para. 74:

Although as a matter of statutory construction a justice of the peace falls within the definition of "summary conviction court" in s. 785 of the Criminal Code, in this province justices of the peace do not in practice exercise jurisdiction as a "summary conviction court" for the trial of summary conviction offences under the Criminal Code.

[34] In D.M.E., the Court of Appeal held that, at the very least, it is necessary for a Superior Court to reconstitute itself as a summary conviction court if the judge intends to rely on his power to act as a justice of the peace (para. 74). If this is the case, then it seems to me that there must at least be a severance of the counts on an indictment before a judge of the Superior Court can deal with both indictable and summary conviction matters, as a justice of the peace has no jurisdiction to try an indictable offence. [^1]

[35] If I am correct, then there also seems to be no advantage to proceeding before a Superior Court judge presiding as a justice of the peace and, in fact, a potential disadvantage. As the court pointed out in D.M.E., "circumstances may make i[t] unwise for a judge of the superior court of criminal jurisdiction to exercise jurisdiction as an ex officio justice of the peace, as for example where the effect would be to have members of the same court exercise both first instance and review jurisdiction: R. v. LaFontaine (1973), 13 C.C.C. (2d) 316 (Ont. H.C.), at pp. 317-318" (para. 65). In Ontario, the decision of a summary conviction court is appealable to the Superior Court under Part XXVII of the Criminal Code. Thus, the decision of a Superior Court judge presiding over a summary conviction offence as a justice of the peace would be appealable to the same court that decided the case. As the Court of Appeal said in D.M.E., this would be unwise.

Conclusion

[36] For the foregoing reasons, Mr. Robinson was found not guilty of the charges relating to the possession of cocaine and the charge relating to the possession of cannabis marijuana was marked “withdrawn at the request of the Crown”.

M. G. Ellies J. Released: December 14, 2018

[^1]: Section 469 of the Criminal Code provides that “every court of criminal jurisdiction has jurisdiction to try an indictable offence”, other than the offences specifically listed thereunder, such as murder, which can only be tried by a “superior court of criminal jurisdiction” under s. 468. As I have indicated, under the Criminal Code, justices of the peace are included in the definition of “justice” under s. 2, as are provincial court judges. However, they are not included in the definition of “court of criminal jurisdiction”. That term is defined in s. 2 of the Criminal Code as including, in Ontario, the Ontario Court of Justice. The Ontario Court of Justice is defined in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Pursuant to s. 35 of the CJA, the Ontario Court of Justice consists of provincial court judges, and not justices of the peace.