Court File and Parties
Court File No.: CR-20-02-0000 Date: 2020-08-10 Ontario Superior Court of Justice
Between: Her Majesty The Queen, Respondent – and – Victor Miranda, Applicant
Counsel: Robin Bellows, Agent for the Director of Public Prosecutions Samantha Saunders, for the Applicant
Heard: July 30, 2020
Before: Tremblay j.
Reasons on Certiorari Application
Introduction
[1] Shortly before midnight on April 15, 2019, police conducted a traffic stop on Highway 69 in the District of Parry Sound. There were two people in the car they pulled-over: the driver and Victor Miranda (“the applicant”) who occupied the passenger seat.
[2] The traffic stop evolved into a criminal investigation, culminating with a search of the motor vehicle.
[3] The police found 519 grams of cocaine in a backpack located in the trunk of the car. The cocaine was in bundled up plastic grocery bags.
[4] The driver had $800 in the pockets of his jacket.
[5] The applicant was bound by a Recognizance of Bail. It included conditions to remain in his residence at all times unless in the direct presence of his surety and to reside with his surety at 923 Wilson Avenue in Toronto. The driver was not his surety.
[6] The police charged the driver and the applicant with possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000. The applicant was also charged with two counts of breach of recognizance.
[7] On January 17, 2020, Justice Oldham of the Ontario Court of Justice (“the preliminary inquiry judge”) committed the applicant to stand trial on all the charges he was facing at the conclusion of the preliminary inquiry.
[8] The applicant seeks an order quashing the committal on all counts except the charge of failing to comply with his recognizance for which he consented to committal.
[9] For the reasons that follow, I have determined that the preliminary inquiry judge made a jurisdictional error in committing the applicant to trial on the charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000. As a result, the committal shall be quashed, and the applicant discharged on those two counts.
Background
The facts
[10] The facts relevant to this application are not in dispute and can be summarized as follows.
[11] At 11:18 p.m. on April 15, 2019, Provincial Constable (“PC”) Baum conducted a traffic stop in Archipelago Township of a grey Ford Fiesta that was speeding while travelling Northbound on Highway 69.
[12] The officer approached the vehicle on the passenger’s side and obtained a driver’s licence, insurance and registration documents from the driver. The applicant was seated in the passenger seat.
[13] PC Baum detected the odour of raw marijuana upon approaching the vehicle and observed pieces of dry, leafy green substance on the passenger’s lap. He returned to his police car and requested a second unit for back-up to search the vehicle under the Cannabis Control Act (“CCA”). While waiting for the second unit to arrive, PC Baum confirmed the driver was the registered owner of the vehicle and wrote him a provincial offence notice for speeding.
[14] At 11:51 p.m., PC Woods and PC Catcher arrived on the scene. A search of the vehicle and its occupants was commenced under the CCA. PC Baum searched the applicant and found a vape pen containing oil (suspected to be marijuana), an Ontario Health card, cigarettes, napkins and rolling papers on his person. Police conducted a search of the driver and located a lighter, Visine drops, and $800 in cash. The cash was in $20 denominations; $200 was found in the driver’s right jacket pocket, and $600 was found in his left jacket pocket.
[15] PC Baum and PC Catcher searched the interior of the vehicle for cannabis accessible to the driver. PC Baum located a black fanny pack on the floor behind the driver’s seat. A small digital scale, rolling papers, a grinder and a plastic foil containing a substance believed to be cannabis were located inside the fanny pack. The foil bag was seized, and the driver and applicant were permitted to return to the vehicle.
[16] PC Baum returned to his vehicle and conducted a CPIC query of the applicant. He received information that there was a surety warrant for the applicant dated April 4, 2019. The CPIC query also returned information that the applicant was on a recognizance for outstanding charges. The recognizance contained multiple conditions, including to remain in his residence at all times unless in the direct presence of his surety, and to reside with his surety at 923 Wilson Avenue in Toronto. The query also returned information that the applicant had been flagged as “armed and dangerous” in relation to his outstanding charges. PC Baum was not aware of when the flag had been issued. The surety named on the recognizance was not the driver, and PC Baum, therefore, formed grounds to arrest the applicant for failing to comply with his recognizance. The applicant was arrested, searched again, and placed in the police vehicle. The police found no evidence as a result of this subsequent search of the applicant.
[17] Following the arrest of the applicant, the police decided to search the trunk of the car.
[18] PC Woods and PC Catcher searched the trunk of the vehicle. Inside the trunk, PC Woods located bags, a child’s car seat, a spare tire, and a red gas can. PC Woods searched one bag, a red “Shark” brand bag, and found nothing notable. He also located a green backpack in the trunk containing clothing and bundled up plastic grocery bags. The grocery bags contained a crumbly detergent-like substance that he believed to be a controlled substance. Upon finding this suspected controlled substance, both the driver and the applicant were placed under arrest for possession of a controlled substance for the purpose of trafficking.
[19] The car was transported to a garage at the police station, and a further search for controlled substances was conducted. The police found nothing as a result of that search. The contents of the bundled-up grocery bags were weighed, totalling 519 grams. The substance was separated into four separate quantities: 106 grams, 199 grams, 106 grams, and 108 grams. The Crown filed Certificates of Analysis, confirming that the substance contained in the grocery bags tested as cocaine.
The evidence at the preliminary inquiry
[20] PC Woods and PC Baum testified at the preliminary inquiry about the facts set out above. The defence did not call any evidence. Various exhibits were filed, including the Certificates of Analysis and the applicant’s Recognizance of Bail.
The decision of the preliminary inquiry judge
[21] The preliminary inquiry judge reviewed the legal test for committal extensively.
[22] She stated that any reasonable interpretation or permissible inference from the evidence properly admissible against the accused beyond conjecture and speculation is to be resolved in favour of the Crown. She added that some evidence, if only at a level of a scintilla of evidence, must, however, exist in respect of the constituent elements of each count.
[23] She then addressed the Court of Appeal decision in R v. S.D., [1974] O.J. No. 535 and commented as follows:
The Court of Appeal decision in R. v. S.D. notes, after referring to the inferences relied upon by the trial judge, that such evidence is permissible to draw an inference of control as to what was in the vehicle. The Court of Appeal held in that particular decision that it was impossible to characterize the inference as irrefutable and the result of that was that the trial judge had misdirected himself and the conviction was quashed. The decision supports the notion that the evidence presented in this particular preliminary hearing can lead to permissible inferences rather than pure speculation and conjecture.
[24] The preliminary inquiry judge went on to state that she was not to consider the inherent reliability of any of the evidence, but must simply decide whether, if the evidence is believed, it would reasonably support an inference of guilt rather than conjecture and speculation.
[25] On the essential element of possession, the preliminary inquiry judge concluded as follows:
One inference that can be drawn from the evidence that has been provided by the Crown in this case is that both accused were in possession of both the cocaine and proceeds with the requisite knowledge and consent. As a result, I must commit both in respect of those two counts being the count of possession of proceeds and the count with respect to possession of cocaine.
[26] The preliminary inquiry judge did not refer to the circumstantial evidence she relied upon to make the inference that knowledge and consent had been established to the required degree of certainty.
[27] On the charge of breach of recognizance on which the applicant had not consented to his committal, the preliminary inquiry judge concluded as follows:
With respect to the final count against Mr. Miranda, being the breach of his recognizance, I noted that the term itself provides that he is to reside with his surety at a particular address. The evidence before me today is that his surety had revoked and there is at least an inference that he was no longer residing at that particular reference (sic). There is, in my view, sufficient evidence to commit on that count, as well.
The position of the parties
The applicant
[28] The applicant contends that the preliminary inquiry judge erred in law and exceeded her jurisdiction in ordering him to stand trial on the above-noted charges in the complete absence of any evidence sufficient to support such a finding. He further argues that the preliminary inquiry judge committed a jurisdictional error in mischaracterizing and misapprehending the evidence and the inferences that were available from the evidence in committing him to trial.
[29] More specifically, on the counts of possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000, the applicant is of the view that there was a complete absence of evidence upon which the preliminary inquiry judge could have drawn any inference that the applicant had any knowledge or control of the cocaine found in the trunk of the driver’s car or of the money located on the driver’s person.
[30] On the count of breach of recognizance, the applicant argues that the preliminary inquiry judge relied on inadmissible hearsay evidence (the information obtained by the officer from CPIC that there was an outstanding surety warrant) for the truth of its content. Furthermore, he contends that the preliminary inquiry judge erred in committing him to stand trial in the absence of evidence as to where he was residing at the time of his arrest. The applicant submits that the fact that he was not at his specified residence at the time of his arrest does not allow for an inference to be drawn that he was not residing at that address.
The Crown
[31] The Crown submits that the preliminary inquiry judge understood and correctly stated the law and the test for committal, and applied it accordingly. In doing so, she made no jurisdictional error. She properly engaged in a limited weighing of circumstantial evidence in the context of the evidence as a whole and was required to resolve any competing inferences in favour of the Crown. Further, the Crown argues that the preliminary inquiry judge made no legal error, nor did she mischaracterize or misapprehend the evidence at the preliminary inquiry. Even if she made such a legal or factual/evidentiary error, it is not reviewable on certiorari.
[32] More specifically, the Crown argues that the inferences made by the preliminary inquiry judge on the issue of knowledge and control and the issue of the applicant’s residency were reasonable considering the evidence established during the proceeding and, therefore, available to her. Finally, the Crown contends that any error as to the admissibility of evidence by the preliminary inquiry judge is not reviewable on certiorari.
The Law
The test for committal
[33] The test for committal to trial was articulated by the Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown’s evidence consists of or includes circumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. The preliminary inquiry judge must weigh the evidence to assess whether it can support the inferences the Crown asks the jury to draw.
[34] In determining what inferences are reasonable, a preliminary inquiry judge is not concerned with questions of credibility or choosing between competing inferences. As the Ontario Court of Appeal found in R. v. Dwyer, 2013 ONCA 368 at para. 4: “Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.”
[35] In R. v. Sethi & Iqbal, 2014 ONSC 146 Justice O’Donnel discussed the inference required to establish knowledge and control:
Unlike at the trial stage, the preliminary justice was not required to establish that the only reasonable inference from the evidence was that the applicant had knowledge and control, but rather that one of the reasonable inferences established knowledge and control, and therefore constructive possession of the items located in the stash house.
[36] The Ontario Court of Appeal affirmed Justice O’Donnel’s decision. The Court of Appeal concluded that while other inferences may also have been available on the evidence, there was no error in the certiorari judge’s conclusion that the inferences drawn by the preliminary inquiry judge were available.
The scope of review on certiorari
[37] The extraordinary remedy of certiorari quashing the committal will only be granted if the preliminary inquiry judge has fallen into jurisdictional error. As stated by Justice Watt in R. v. Scott at paragraph 42, “The issue is not whether the reviewing judge would have reached the same conclusion as the judge who presided, but rather, whether the judge at the preliminary inquiry could have reached the decision that she or he did.”
[38] Decisions about the admissibility of the evidence at a preliminary inquiry, even if wrong, do not affect jurisdiction. Jurisdiction has to do with the authority to make a decision, not the correctness or otherwise of the decision made: R v. Scott at paragraph 45.
[39] If there is no evidence on some essential element of the charge, it will be a jurisdictional error for the preliminary inquiry judge to commit the accused to trial: Dubois v. The Queen at paragraph 18.
[40] In cases involving circumstantial evidence, the task of the reviewing judge is only to assess whether the inferences drawn were reasonable and, therefore, available to the preliminary inquiry judge: R. v. Sethi & Iqbal at paragraph 69. If the circumstantial evidence could not reasonably support an inference that the essential elements have been proven with the required degree of certainty, it will be a jurisdictional error for the preliminary inquiry judge to commit the accused to trial.
Analysis
The charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000
The essential element of “possession”
[41] “Possession” is an essential element of possession of cocaine for the purpose of trafficking and of possession of proceeds of crime under $5,000.
[42] Possession includes actual possession, constructive possession or joint possession.
[43] Actual possession requires contemporaneous knowledge, consent and control.
[44] Constructive possession requires knowledge that extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.
[45] Finally, joint possession requires knowledge, consent and a measure of control on the part of the person deemed to be in possession.
[46] I note that the preliminary inquiry judge only addressed the knowledge and consent aspects of possession in her reasons, not the control component. However, this was not the subject of argument by the parties at the hearing of the application. I will, therefore, not linger on this issue.
[47] Before I turn to the main question that I must answer in this case, I find that it is important that I comment briefly on two of the key decisions to which counsel referred me: R. v. S.D., supra and R. v. Collins, [2003] OJ No. 820.
[48] The preliminary inquiry judge relied considerably on R. v. S.D. in support of her conclusion “that the evidence presented in this particular preliminary hearing can lead to permissible inferences rather than pure speculation and conjecture.”
[49] The facts in R. v. S.D. can be summarized as follows. The accused was the driver and sole occupant of a truck. The truck was similar to one he had been seen driving earlier in that year. There was no evidence that the accused was the owner of the truck or that he had driven it on any prior occasion. The police located a cigarette containing marijuana under the floor mat in front of the driver. On appeal from the conviction, the Court of Appeal concluded that “while agreeing that it would be permissible in some circumstances to draw an inference that the appellant had control of what was in the vehicle, it would be impossible to characterize the inference as ‘irrefutable’.”
[50] I take from R. v. S.D. that an inference of control of what is in a vehicle can be made from the established circumstantial evidence. However, whether it is reasonable to do so will depend entirely on the circumstances of each case. For instance, I note that the circumstantial evidence supporting an inference of possession in the present case is much weaker than in R. v. SD: the car was occupied by two people; the applicant was only a passenger; the drugs were not in close proximity of the applicant and were only accessible by opening the trunk.
[51] In summary, I find that while it is permissible to draw an inference of control of what is in a vehicle based on the established circumstantial evidence, it will not always be reasonable to do so. It will depend on the nature and extent of the circumstantial evidence that has been established. The question I must answer is whether the circumstantial evidence established at the preliminary inquiry in this case reasonably entitled the preliminary inquiry judge to draw the inferences that the applicant had knowledge and some measure of control of the cocaine and proceeds of crime.
[52] Counsel for the applicant relied upon the case of R. v. Collins, supra in support of her submission that the inference of knowledge and control was not available to the preliminary inquiry judge. The facts in Collins bear similarities with the facts in the present case. In Collins, Justice Molloy determined that the only evidence against Mr. Collins was that he happened to have been sitting in a car in which drugs were located. On that basis, she granted his application for a directed verdict since no reasonable jury could possibly conclude that this evidence was consistent only with the accused being in possession of the cocaine and inconsistent with any other rational explanation.
[53] It is important to remember that the test for quashing a committal is slightly different than the test for a directed verdict. As I quoted earlier from the reasons of Justice O’Donnel in R. v. Sethi & Iqbal, supra “unlike at the trial stage, the preliminary justice was not required to establish that the only reasonable inference from the evidence was that the applicant had knowledge and control, but rather that one of the reasonable inferences established knowledge and control.”
[54] As a result, the preliminary inquiry judge could very well commit the applicant to stand trial in this case even though Justice Molloy granted a directed verdict in similar circumstances in Collins.
[55] I will now turn to the key question that I must answer in this application.
Were the inferences drawn by the preliminary inquiry judge regarding the essential element of possession, more specifically the knowledge, consent and control component, reasonable and, therefore, available to her?
[56] To answer that question, I will first summarize the established evidence available to the preliminary inquiry judge on the issue of possession.
[57] In a nutshell, the evidence established at the preliminary inquiry is as follows:
- The applicant was bound by a Recognizance of Bail which provided that he was to remain in his residence in Toronto at all times unless in the direct presence of his surety;
- The applicant was a passenger in a car headed northbound on Highway 69 in the District of Parry Sound;
- The driver was also the registered owner of the car and was not the applicant’s surety;
- The police found 519 grams of cocaine in plastic grocery bags located inside a backpack in the trunk of the car,
- The driver of the car had $800 in his jacket pockets.
[58] Importantly, the transcript of the preliminary inquiry does not disclose any evidence relating to:
- The driver’s address;
- The location from which the car departed and the time it left that location;
- The driver’s destination other than the fact he was travelling Northbound on Highway 69 when he was pulled over by the police;
- The time the applicant entered the car and under what circumstances;
- The nature of the relationship, if any, between the driver and the applicant;
- Any personal property of the applicant having been found anywhere in the car and particularly in the trunk of the car;
- Any link between the applicant, the money, the drugs, the backpack containing the drugs or the trunk of the car;
- The applicant having knowledge that the driver had money on him;
- The fact that the money was proceeds of crime;
- The fact that the money or a portion of the money belonged to the applicant;
- The fact that the driver was holding the money for the applicant;
- The fact that the applicant had any measure of control over the money that was in the actual possession of the driver.
[59] I will first deal with the charge of possession of cocaine for the purpose of trafficking. I find that there is a substantial evidentiary gap between the applicant’s presence in the car as a passenger and his knowledge and some measure of control of the cocaine located in a backpack in the trunk of the car. There is, in my view, a total absence of evidence linking the applicant to the cocaine found in the trunk of the car.
[60] Considering the limited facts established at the preliminary inquiry, I find that the preliminary inquiry judge could not reasonably and logically draw an inference that the applicant had knowledge and some measure of control of the cocaine to bridge that evidentiary gap. Stated differently, the mere presence of the applicant in the passenger seat of the car for an undetermined period in the circumstances of this case does not lead to a reasonable and logical inference that he knew of the presence of the cocaine in the trunk of the car and that he exercised some measure of control over it.
[61] In my view, the preliminary inquiry judge moved beyond a permissible inference and into the realm of speculation and conjecture to bridge that evidentiary gap between the applicant occupying the passenger seat of the car and his knowledge and control of the cocaine hidden in a backpack in the trunk of the car. Simply put, the inference of knowledge and control was not open to the preliminary inquiry judge on the evidence established at the preliminary inquiry.
[62] Making that inference in those circumstances results in a jurisdictional error. Accordingly, I am quashing the committal on the charge of possession of cocaine for the purpose of trafficking and ordering that the applicant shall be discharged on that count.
[63] The committal on the charge of possession of proceeds of crime under $5,000 is even more problematic. In my view, more evidence would have been required than on the charge of possession of cocaine for the purpose of trafficking to make an inference of control over the money since it was in the actual possession of the driver. I have concluded that the preliminary inquiry judge could not reasonably and logically draw an inference that the applicant had knowledge and some measure of control of the money found in the actual possession of the driver from his mere presence in the passenger seat of the car for an undetermined period in the circumstances of this case. This constitutes a jurisdictional error on the part of the preliminary inquiry judge. As a result, I am also quashing the committal on the charge of possession of proceeds of crime under $5,000 and ordering that the applicant shall be discharged on that count.
The charge of breach of recognizance (failure to reside at 923 Wilson Avenue, Toronto)
[64] The following facts established at the preliminary inquiry are relevant to the charge of breach of recognizance that is the subject of this certiorari application:
- The applicant was bound by a Recognizance of Bail that contained multiple conditions, including to remain in his residence at all times unless in the direct presence of his surety and to reside with his surety at 923 Wilson Avenue, Toronto;
- There was a surety warrant for the applicant’s arrest as a result of the surety with whom he was to reside, removing himself as surety;
- The applicant was in the District of Parry Sound, several hours from his Toronto residence near midnight;
- The applicant was in the company of the driver, who was not his surety.
[65] In my view, those facts allowed the preliminary inquiry judge to draw an inference that the applicant was not residing at 923 Wilson Avenue in Toronto.
[66] The applicant contends that the information obtained by the officer from CPIC (that there was an outstanding surety warrant) is hearsay evidence that could not be relied upon by the preliminary inquiry judge for the truth of its content. In my view, this argument has to do with the admissibility of the evidence and relates to the correctness of the decision, not the authority to make the decision. The correctness of the decision is not subject to review on certiorari, and I will not do so.
[67] The applicant also relied upon the Court of Appeal decision in R. v. Gravino, [1991] OJ No. 2927 for the proposition that “reside” is a word of flexible meaning, and that a residency component as a condition of a judicial release does not preclude temporary absences from the place of residence. In my view, the term “reside” in the applicant’s Recognizance of Bail has no such flexibility. The Recognizance of Bail does preclude temporary absences from the place of residence since there is also a condition that the applicant is to remain in the residence at all times unless in the direct presence of his surety.
[68] In conclusion, the evidence before the preliminary inquiry judge on that count was clearly sufficient to allow her to draw an inference that the applicant was not residing at 923 Wilson Avenue in Toronto. The application to quash the committal on the count of breach of recognizance (count #3 on the Indictment) is dismissed.
Conclusion
[69] The certiorari application to quash the committal on the charges of possession of cocaine for the purpose of trafficking (count #1 on the Indictment) and possession of proceeds of crime under $5,000 (count #2 on the Indictment) is granted. I vacate the committal to stand trial on those two charges. I remit the matter to the preliminary inquiry judge with a writ of mandamus directing the discharge of the applicant on those two charges.
[70] The certiorari application is dismissed in relation to the charge of breach of recognizance (count #3 on the Indictment).
The Honourable Mr. Justice R. Y. Tremblay
Released: August 10, 2020
COURT FILE NO.: CR-20-02-0000 DATE: 20200810 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – VICTOR MIRANDA REASONS ON CERTIORARI APPLICATION TREMBLAY, J.
Released: August 10, 2020