Court File and Parties

Court File No.: CR-18-26-MO Date: 2019-06-26 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: John Wesley, Respondent

Counsel: S. A. White, for the Crown S. Sabourin, for the Respondent

Heard: June 3, 2019

Reasons for Judgment

Wilcox J.

[1] John Wesley was charged with four counts. At a preliminary inquiry held on January 8, 2018, Lambert J. discharged him on all four. The federal crown now seeks an order of certiorari quashing the discharge orders on two of the counts, and associated orders of mandamus. For the reasons that follow, I dismiss the application.

[2] The charges arose when police executed a search warrant at the accused’s residence. They found the door to be locked and heavily fortified. The officers had to use a ram to obtain entry through the door. While they were doing so, the accused could be seen through an adjacent bedroom window. He was observed to go near the dresser, pick something up, and leave the room. Once inside, the police located the accused in the bathroom attempting to flush six baggies with white powder in them down the toilet, which baggies they recovered. On the dresser in the bedroom was found a package of white powder similar to those in the toilet, and envelopes of Canadian currency. Elsewhere in the residence, they found six Ziplock bags filled with small packets of white powder in a pencil case, and an AWS scale, and three envelopes of Canadian currency, all behind a panel in a wall. Also in the bathroom, they found a crushed white pill, a NIK test of which was positive for cocaine.

[3] There was no certificate of analysis identifying the white powder. In reference to it, the police said they “suspected” or “believed” it to be cocaine.

[4] In total, 120.5 grams of suspected cocaine and $2,839.00 were seized.

[5] At the preliminary hearing, on June, 2018 after hearing the evidence and submissions:

1. Lambert J. set out the test for committal, noting that there needed to be some evidence on each of the essential elements of the offence of possession of cocaine for the purposes of trafficking, including evidence of what the substance is, and found that there was no evidence that what was seized, other than the small pill, was cocaine. In doing so, he stated all of the officers referred to it as suspected cocaine, but that there was no certificate of analysis. Therefore, he discharged on that count. He refused to draw the inference that, because the small pill tested positive for cocaine, the other white powder seized was cocaine.
2. Similarly, on the charge of possessing proceeds of crime, he found no evidence that the money came from criminal activity and discharged the accused on that charge as well.

[6] The crown sought an order for certiorari quashing the discharge orders for the following matters:

1. Possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
2. Possession of property, not exceeding $5,000.00, obtained by crime contrary to s. 354(1)(a) of the Criminal Code.

[7] The grounds were:

1. That the learned Justice exceeded his assigned statutory jurisdiction by not applying correctly the test outlined by the Supreme Court of Canada in The United States of America v. Shephard (1977) 2 S.C.R. 1067.
2. That the Justice failed to act within his jurisdiction by failing to consider the whole of the evidence in arriving at his decision to discharge the respondent.

[8] Dealing first with the jurisdiction issue, the crown’s argument was that the learned Justice erred in not considering the totality of the circumstances from which inferences favourable to the crown could be drawn. The circumstances included:

1. The police were there to search for cocaine;
2. Officers testified that the white powder was believed to be cocaine, not just suspected to be as the judge said in his reasons;
3. This was the accused’s home;
4. The barricading of the door in an extreme manner, common with drug houses;
5. At the time of execution of the search the accused was observed through the window running around in his bedroom, going somewhere near his dresser and then grabbing something from the dresser. Two small baggies of white powder and three envelopes of cash were later found there;
6. The accused then ran from the bedroom to the bathroom;
7. The attempted flushing in the bathroom toilet of six small baggies of white powder;
8. The crushed white pill found in the bathroom tested positive with the NIK test for cocaine;
9. Hidden in a compartment in the living room wall were: i. A pencil case with six Ziplock baggies of white powder; ii. A black AWS scale; and iii. Three envelopes of cash.
10. The large amount of cash; and
11. Multiple small baggies with small amounts of white powder.

[9] The crown then sought to have the same argument apply to the count of possession of proceeds of crime.

[10] Provisions regarding preliminary inquiries are found at ss. 535 - 551 of the Criminal Code. The test for committal, known as the Shephard test is found at s. 548(1):

548 (1) When all the evidence has been taken by the justice, he shall (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[11] An order discharging an accused may be quashed on certiorari when there has been a jurisdictional error. R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601. The reviewing court should only intervene when there has been a jurisdictional error. R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 14. Any of the following would result in a loss of jurisdiction:

1. A misunderstanding of the essential elements of an offence;
2. An assessment of credibility or reliability;
3. A preference of an inference favourable to the defence over one favourable to the crown;
4. A failure to consider the whole of the evidence. R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, paras. 18 and 25

[12] It is the last-mentioned that we are dealing with here.

[13] The preliminary inquiry took place on June 6, 2018. It was fairly brief, judging by the transcript which is only 57 pages, including evidence, submissions and decision. The evidence was not complex, involving the brief testimony of four officers who executed a search warrant on the accused’s house as to who and what they found inside. The issue of the lack of evidence of the nature of the substance found was raised explicitly by the defence with respect to the possession for the purpose of trafficking charge. Similarly, the lack of evidence of illicit activity to relate the currency found to was raised.

[14] The crown argued for committal. When queried about the evidence of the nature of the substance, he made submissions in favour of the court drawing an inference that there was cocaine. This included caselaw to the effect that certificates of analysis are not needed for committal. The judge also invited submissions on the proceeds of crime count, indicating his understanding of it, and thereby giving the crown an opportunity to make his case for committal on that count.

[15] The lack of a certificate of analysis and the idea of drawing an inference as to the nature of the substance where again touched on in reply.

[16] The decision followed forthwith. It has been outlined previously in these reasons. It addressed both the lack of direct evidence and the idea of drawing an inference as to the nature of the substance. The reasons were brief, as they may be. R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, paras. 21 and 34.

[17] They do not enumerate every item that might support an inference adverse to the accused. Nevertheless, in the circumstances, I am satisfied that the judge was alive to and took account of the necessary considerations. Even if he had come to a wrong conclusion on the point, “…(i)t 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)… 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…”. R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, para. 23. I find no error of jurisdiction and would dismiss the application.

[18] In the event that I am wrong and there was a loss of jurisdiction, I will address the crown’s next argument. That is, that there was sufficient evidence from which the preliminary inquiry judge could have inferred that the substance was cocaine, thereby supporting committal on the charges.

[19] The judge’s decision on the count of possession of cocaine for the purposes of trafficking was based on his finding that there was no evidence that what was seized was cocaine. The nature of the substance is one of the essential elements of that charge. As previously indicated, there was no certificate of analysis of the substance.

[20] The crown submitted that a certificate of analysis is not required at the preliminary inquiry stage and that all that is required is some direct or circumstantial evidence of the nature of the substance.

[21] In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 the court stated the following in paragraphs 21 - 23:

21 The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, 1987 SCC 16, [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.

22 The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 SCC 16, [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at par. 8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at par. 2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

23 The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[22] “Reasonable inferences are not necessarily likely or probable inferences. The inference that is mostly available to the crown must drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.” R. v. Dwyer, 2013 ONCA 368, [2013] O.J. No. 2554 ONCA, para. 4.

[23] In considering the available inferences the whole of the evidence must be considered. R. v. Gray, 2012 ONCA 7, [2011] O.J. No. 6062, referencing R. v. Sazant (2004).

[24] The crown filed in support of his argument the case of R. v. Bentley, [2012] O.J. No. 5616, a decision of the Superior Court of Justice of Ontario that was upheld by the Court of Appeal on appeal. It appears from reading the case that, absent a certificate of analysis, there must be some basis given for the opinion as to the nature of the substance.

[25] The cases, whether dealing with preliminary inquiries or trials, in which evidence other than a certificate of analysis has been accepted on the nature of the substance appear to be limited to ones involving marijuana. It is one thing to identify marijuana with its characteristic appearance and smell. It is another to identify an unremarkable white powder as cocaine, as compared to various other substances. This was alluded to in R. v. Grunwald, [2008] BCSC 1738, at para. 37, where it was stated:

[37] I am of the view that while a certificate of analysis provides the simplest, most convenient and most satisfactory method of proof, the nature of the substance that was seized can be established by other means, particularly when the substance in question is marihuana as opposed to some liquid or powder which may have no identifiable, unique characteristics other than chemical composition.

[26] In a similar vein, McClung J.A. stated in R. v. Grant, 2001 ABCA 252, para. 2, stated:

[2] We will deal with this case on the certificate issue alone. A proper scientific analysis of a suspected substance is essential. Granted that a lay person can recognize various things such as smell, sights, sounds and speeds, and that such evidence may be admitted, the danger of permitting lay identification of an allegedly illegal substance is manifest and ought not to be encouraged. The chemical or scientific analysis of an illegal substance may well provide, and normally does provide, the court with reliable and trustworthy evidence that the substance was actually illegal according to its components. The certificate of analysis conveys just that. In practice, the certificate ends any debate about what was seized. …

[27] The preliminary inquiry judge in the present case reviewed the evidence and concluded that, while it raised suspicion, it was insufficient to commit the matter to trial. Even if this court had the authority to overturn that decision, which I have determined it does not as noted above with respect to jurisdiction, I am not persuaded to do so. The decision that the inference as to the nature of the substance could not be drawn was open to the preliminary inquiry judge to make. R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23.

[28] The application is therefore dismissed on this ground as well.

[29] The crown had an alternative submission with respect to the count of possession of proceeds of crime under $5,000.00 contrary to s. 354(1)(a). This was that this charge was within the absolute jurisdiction of the Ontario Court of Justice pursuant to s. 553 of the Criminal Code. Consequently, the crown submitted, the preliminary inquiry judge could have adjourned the matter to Superior Court, on consent, to follow the other charges, but he did not have authority to conduct a preliminary hearing on the charge and then make a discharge order under s. 548(1)(b) of the Criminal Code.

[30] The crown did not press this argument strongly, preferring that I decide the case on his argument based on the preliminary inquiry judge’s treatment of the evidence. Anyway, I would dismiss this argument for the reasons set out in R. v. Zdrale, [2014] O.J. No. 28, at paras 43 – 47.

The Honourable Justice J. A. S. Wilcox Released: June 26, 2019