COURT FILE NO.: CR-19-90000339-0000 DATE: 20210311 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN -and- JOHN COCHRANE

Counsel: Jason Mitschele and Karen Rehner, for the Public Prosecution Service Deniz Sarikaya, for the Defendant

HEARD: February 2, 3, 2021

Justice J. Copeland

Reasons for Judgment

[1] John Cochrane is charged with one count of possession of heroin for the purpose of trafficking. [1] The charges relates to approximately 11 grams of heroin seized by police during a search of an apartment pursuant to a warrant. As I will outline, the apartment was occupied by Mr. Cochrane and Ms Tanya Petersen. The validity of the warrant was not challenged.

[2] The prosecution’s case is primarily a circumstantial one. There are two issues in dispute: (i) has the prosecution proven beyond a reasonable doubt that Mr. Cochrane possessed the heroin (either sole or joint possession)? and (ii) if possession is proven, has the prosecution proven beyond a reasonable doubt that the purpose of the possession of the heroin was to traffic it?

Applicable Law

Regarding the presumption of innocence, the burden of proof, proof of possession, and circumstantial evidence

[3] I begin with the basic legal principles that apply in this case. None of these principles is in dispute between the parties.

[4] Mr. Cochrane is presumed innocent unless and until the prosecution proves his guilt beyond a reasonable doubt.

[5] In order to prove possession, the prosecution must prove knowledge of the substance (of its presence, and that it was a controlled drug), and some measure of control over the substance: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15, 17; R. v. Lights, 2020 ONCA 128 at paras. 44-52.

[6] Section 4(3) of the Criminal Code provides for three forms of possession. In this case the prosecution relies on a theory of constructive possession by Mr. Cochrane, either alone (s. 4(3)(a)), or jointly with Ms Petersen (s. 4(3)(b)). In order to prove constructive possession, the prosecution must prove: (1) that Mr. Cochrane had knowledge of the character of the substance (the heroin); (2) that he knowingly put or kept the heroin in a particular place, whether or not that place belongs to him; and (3) that he intended to have the heroin in the particular place for his use or benefit or that of another person: Morelli at para. 17; Lights at paras. 44-52. To the extent that the prosecution relies on a theory of joint possession, Mr. Cochrane could be found to be in joint possession of the heroin if it is proven beyond a reasonable doubt that he had knowledge of the heroin in the apartment, and had some measure of control over the heroin: R. v. Chambers; R. v. Pham at paras. 15-16.

[7] The fact that a thing is found in a place occupied by a defendant does not create a presumption of knowledge and control. However, the fact that a person has control over a place, together with other evidence may (depending on the whole of the evidence) enable a trial judge to infer knowledge and control of the item in appropriate cases: Lights at para. 50; R. v. Lincoln, 2012 ONCA 542 at para. 3; R. v. Watson, 2011 ONCA 437 at paras. 11-13; Pham at paras. 17-18.

[8] The prosecution case for possession is a circumstantial one. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-42, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.

[9] In considering the line between reasonable alternative inferences and speculative ones, Justice Cromwell, writing for the court, held as follows at paragraphs 37-38:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[10] As the Court of Appeal recently reiterated in Lights, at para. 37, in assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence.

[11] Inferences consistent with innocence are not required to arise from proven facts. They may arise from a lack of evidence: Villaroman at paras. 35-36; Lights at para. 38. As the Supreme Court noted in Villaroman, this principle is consistent with the holding in R. v. Lifchus, [1997] 3 S.C.R. 320, that a reasonable doubt may arise from the evidence, or from a lack of evidence. But alternative inferences, whether based on the evidence or a lack of evidence, “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman at para. 36.

[12] Both parties agree, as do I, that the assessment in any given case as to whether the prosecution has proven possession beyond a reasonable doubt based on circumstantial evidence is always a very fact-driven analysis.

[13] Finally, before turning to the evidence, I underline the nature of the prosecution’s burden of proof beyond a reasonable doubt. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that a defendant is probably guilty. However, the prosecution is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: Lifchus at para. 39.

The Agreed Facts and the Evidence

[14] Much of the evidence in this trial was filed by way of an agreed statement of facts. In addition, three officers testified who were involved in some of the surveillance and/or the execution of the search warrant. The credibility of those officers was not challenged by the defence. This is because the basic or primary facts of what was observed/seized are not in dispute. What is in dispute is what inferences the court can and should draw from the primary facts, and whether the inferences allow a conclusion that possession for the purpose of trafficking has been proven beyond a reasonable doubt. What follows are my findings with respect to the primary facts.

[15] I note as well that both parties agreed that certain hearsay evidence regarding the surveillance could be admitted for the truth of its contents, where it was recorded in the central notes for a particular day’s surveillance.

The Apartment and the Execution of the Search Warrant

[16] On the night of April 22/23, 2018, at approximately 1:30 a.m., police executed a search warrant at a second floor apartment in a residential building on Woodfield Road. At the time the search warrant was executed, Mr. Cochrane and Ms Peterson were in the apartment. I return to the details of the search below.

[17] The apartment had been the subject of a lease in which Mr. Cochrane and another woman were the tenants from July 15, 2016 to July 30, 2017. Mr. Cochrane entered into a new lease for the apartment, where he was the only listed tenant, from December 1, 2016 to November 30, 2017. After the end of the time period in that lease agreement, Mr. Cochrane remained as the registered tenant for the apartment, and was ordinarily resident there (i.e., the tenancy continued month to month).

[18] The apartment is a one bedroom apartment. Based on the photos filed as exhibits, it does not appear to be particularly large. But it has a bedroom, a bathroom, a kitchen, and a living area. The apartment is somewhat cluttered (which I do not mean as a criticism), with many books, paintings, stereo equipment, and clothes. It looks lived in.

[19] There was evidence that Ms Petersen lived in the apartment with Mr. Cochrane. She was present when the search warrant was executed. And as I will explain, it appears that both she and Mr. Cochrane had been sleeping prior to the police arrival. Some of the police witnesses testified that Ms Petersen was known by police to reside at that apartment.

[20] Officers executed the search warrant by breaching the apartment door with a battering ram, at approximately 1:30 a.m. When they first entered, they were greeted by a large dog. This slowed down their entry into the apartment and into the bedroom, where Mr. Cochrane and Ms Petersen were eventually found, as the officers had to take time to get the dog under control. Although two of the officers who testified gave evidence about the dog and time required to get it under control, neither officer said how long it took to gain control of the dog, or how long was the time between when the door was breached, and when the officers entered the bedroom.

[21] After getting the dog under control, some of the officers entered the bedroom. They found Mr. Cochrane and Ms Petersen there. Both were on the bed. The officer who testified about this issue, whose evidence I accept (and which was not challenged), said that when he entered the bedroom, he saw both Mr. Cochrane and Ms Petersen on the bed. Ms Petersen was in the bed. Mr. Cochrane was in the process of getting off of bed (but was still on the bed). Mr. Cochrane was naked when the police entered the bedroom. The officer could not recall what Ms Petersen was wearing. The officer told them to put their hands up, and not to move. Both complied. Both Mr. Cochrane and Ms Petersen were placed under arrest and handcuffed. The officers allowed Mr. Cochrane to put on some clothes during this process. Both Mr. Cochrane and Ms Petersen were taken into the hall and read the right to counsel. The dog was taken to a neighbour’s apartment.

[22] I pause to note that there were no charges against Ms Petersen on the indictment before me in this trial. She was not called as a witness at trial.

[23] Ms Petersen was identified with her Ontario health card. It was not on her person, but was somewhere in the apartment (details were not provided).

[24] A scene of the crime officer then took entry photos to show the state of the apartment when the officers arrived. Then the officers conducted the search. As items were found, they were photographed where they were found. In addition, at the end of the search the scene of the crime officer took photos to show the state of the apartment after the search.

[25] Officers seized the following items in the apartment:

• .22 grams of a mixture of heroin and caffeine in a small baggie was found in the top left dresser drawer in the bedroom. Also in that drawer was a digital scale. The officer who seized the scale turned it on; so, it appeared to be functioning. In addition, a small quantity of methamphetamine was seized in the same dresser drawer. As I have noted, the count of simple possession in relation to the methamphetamine was withdrawn.
• 11.01 grams of a mixture of heroin and caffeine was found in a plastic baggie on the floor in front of the bedroom closet.
• Two cell phones were seized in the bedroom beside the bed.
• In two locations in the bedroom, officers found a large number of very small baggies (empty) with a logo of skulls printed on them. Some were in a yellow plastic “m&m’s” container beside the bed. The others were in a small box in the top left dresser drawer.
• In the living room under a couch, officers found a black wallet [2] containing $166.25 in Canadian currency, and several pieces of identification in Mr. Cochrane’s name.
• In addition, a bank receipt in Mr. Cochrane’s name and listing the Woodfield Road address was found under the bed in the bedroom.

[26] The three officers who testified about the search all said that there were clothes in the top left drawer where the .22 grams of heroin and the scale were found, and also in the closet that the 11.01 grams of heroin was found in front of. However, none of the officers were able to provide any detail about the nature of the clothing, for example, whether it appeared to be male or female clothing in either location. Nor were they able to give any details about the items in the closet, other than that there were clothes in the closet (which, I note, is clear from the photos).

Police Surveillance Prior to the Date of Execution of the Search Warrant

[27] Before the search warrant was obtained, police conducted surveillance with Mr. Cochrane as the target on three dates, April 10, 11, and 22, 2018.

[28] On April 10, 2018, officers observed a male they believed to be Mr. Cochrane in the lobby of the apartment building on Woodfield Road. I pause to note that counsel explained that the language in the agreed statement of facts that the police “believed” the individual to be Mr. Cochrane was deliberate, in that there was not an agreement that it was, in fact, him on this date. As I was given no information about what observations the police based this belief on, the highest I take this aspect of the agreed statement of facts is that the male’s appearance was not inconsistent with Mr. Cochrane’s. The male pushed an unknown female, who was talking on her phone, out of the building. She threw an object at the second floor window, and then walked away.

[29] On April 11, 2018, officers observed Mr. Cochrane get out of a taxi at the apartment at Woodfield Road, and then throw something at a window on the second floor of the building. He then yelled up to the window. An unknown female with two dogs let him into the building through the back door. Mr. Cochrane later left the building, and got into the passenger side of a vehicle. A check on the vehicle licence showed it to be registered to a named male, who at the time had outstanding drug possession charges. One minute later, Mr. Cochrane got out of the vehicle, and the vehicle drove away. Mr. Cochrane returned to the building and threw something at the window on the second floor. He was let into the building by an unknown female.

[30] On April 22, 2018, officers observed Mr. Cochrane let an unknown male into the building on Woodfield Road. Two minutes later the male left the building. That male was followed to an address on Rhodes Avenue (about which I was given no information and heard no evidence). Later, Mr. Cochrane got into the passenger side of the same vehicle as he had been observed entering on April 11, 2018. One minute later, Mr. Cochrane exited the vehicle, and the vehicle drove away.

Expert Evidence

[31] I qualified Detective Constable Rajan Bhogal to give expert opinion evidence on behalf of the prosecution on the following areas: (i) indicia of trafficking in heroin, packaging, and value of heroin; and (ii) the range of quantities used by heroin users on a daily basis. His expertise is based on both education he has received as a police officer (including specifically for drug investigations), and experience as an officer in various roles in drug investigations, including undercover drug investigations, and managing informants who in some cases are addicts or addict traffickers. I will not summarize the oral ruling I gave on that issue, but I am alive to the limitations on the scope of this type of expert evidence, as discussed in cases such as: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; R. v. Singh, 2014 ONCA 791.

[32] The defence consented to Detective Bhogal being qualified for most of the areas on which I qualified him to testify, but objected to his qualification in the area of the range of quantities typically used by heroin users. However, in light of the way Detective Bhogal qualified his evidence in cross-examination, ultimately the substance of his evidence was not controversial between the parties.

[33] Detective Bhogal’s evidence related primarily to the issue of whether the possession, if proven, was “for the purpose of trafficking”.

[34] Detective Bhogal testified that some items which may indicate heroin trafficking include drug baggies, scales, multiple cell phones, and proceeds of crime. In his experience, small baggies are used by drug traffickers to package drugs in small quantities for sale. Scales are used to weigh drugs for sale. Drug traffickers keep baggies and scales accessible to the location where they are dealing from.

[35] However, in cross-examination, he agreed that a single cell phone per person in a residence would not be indicative of drug trafficking, because these days, “everyone has a cell phone”. He also agreed that a scale can be used by a drug user (i.e., not a trafficker) to make sure that when they purchase drugs, they get the amount they bargained for. He also agreed that the following things would be indicia of drug trafficking: unexplained wealth, a debt list, a weapon. However, in re-examination he said that addict traffickers might not have unexplained wealth.

[36] Detective Bhogal testified that in 2018, one gram of heroin would sell for in the range of $180 to $220. A “point” (.1 gram) would sell for $20 to $40, if sold by the point. Half an ounce (14 grams) would sell for in the range of $2,400 to $2,500.

[37] In terms of the range of quantities of use by heroin users, Detective Bhogal testified that in his experience (primarily from dealing with informants and undercover work) he has seen lower end users of heroin used 2 to 5 points per day (i.e., .2-.5 grams per day). Higher users may use 1-1.5 grams per day. As a user develops tolerance for the effects of heroin, they may use more. He testified that users tend to buy one to two days’ worth of heroin at a time, and it is less common for users to buy more than 1 or 2 grams at a time. However, he said it can happen that users will buy more than 1 or 2 grams at a time. It is just less common, and it depends in part on a person’s financial resources. He testified that addict traffickers might buy half an ounce of heroin in order to support their habit (i.e., intending to sell some). He agreed in cross-examination that if a person wants to get a better deal buying heroin, prices are better buying in bulk, and that price is higher at the point or gram level than at the ounce level.

Has the Prosecution Proven Possession Beyond a Reasonable Doubt?

[38] There is nothing in the evidence before the court to support an inference that anyone besides either Mr. Cochrane, or Ms Petersen, or both may have been in possession of the heroin. The apartment was on a month to month tenancy in Mr. Cochrane’s name. They both lived there. I draw the inference that they were both asleep there just prior to the police entry, based on the fact that it was the middle of the night, that they were both found in the bed, and that Mr. Cochrane was naked. I note as well that a government issued Ontario Photo Card seized by police lists Ms Petersen’s address as the Woodfield Road apartment.

[39] Having ruled out possession by anyone besides either or both of Mr. Cochrane and Ms Petersen, this leaves three possible inferences related to the possession of the heroin: 1) that Mr. Cochrane was in sole possession of the heroin; 2) that Mr. Cochrane and Ms Petersen were in joint possession of the heroin; and 3) that Ms Petersen was in sole possession of the heroin.

[40] Either of the first two inferences would be sufficient to find Mr. Cochrane guilty. However, if I have a reasonable doubt in relation to the third inference – in other words, if the third inference is not a speculative inference on the record before the court, then I must find Mr. Cochrane not guilty.

[41] The prosecutions submits that the evidence before the court supports at least joint possession. The prosecution submits that the evidence supports that Mr. Cochrane had control over the apartment, because the tenancy was in his name, he had lived there for some time, his identification was found in the apartment, he was sleeping there when the police arrived, and the clothes in the closet included men’s clothes. The prosecution argues that as the registered tenant, Mr. Cochrane had control of the apartment in the sense that he could exclude Ms Petersen if he chose. The prosecution argues that the drugs on the floor in front of the closet were in plain view. To the extent that one might question whether the drugs on the floor were stored there, and whether they had been moved there in an attempt to hide them as the police entered, the prosecution submits that the court should infer that Mr. Cochrane moved them, as he was seen in the process of getting out of bed when the police entered the bedroom. With respect to the small quantity of heroin in the top left drawer of the dresser, the prosecution submits the court should infer that from the photos that men’s clothes were in that drawer (thus making a connection to Mr. Cochrane). The prosecution also submits that the bedroom the drugs were located in was a small room, and taking all the evidence together it is enough to infer that Mr. Cochrane had knowledge that the drugs were there.

[42] The defence submits that in this case there are three reasonable inferences on the evidence before the court: that Mr. Cochrane was in sole possession of the heroin; that Ms Petersen was in sole possession of the heroin; or that they were in joint possession. The defence submits that the inference that Ms Petersen was in sole possession is a reasonable, non-speculative inference that the prosecution has not ruled out on the record before the court. For this reason, the prosecution has failed to prove beyond a reasonable doubt that the only reasonable inference is that Mr. Cochrane possessed the heroin (either alone or jointly).

[43] With respect to control over the apartment, I accept that the evidence supports that Mr. Cochrane had control over the apartment. Although Ms Petersen lived there with him, he had lived there for a number of years, and he was the sole person who had legal tenancy of the apartment, since the last lease was in his name, and as a result, he had the continuing month to month tenancy in his name.

[44] Having legal control of the apartment does not necessarily mean that Mr. Cochrane had control as a factual matter. One could imagine situations where a tenant, for some reason, does not have control of someone else who lives at or uses their apartment, or control over what that other person keeps in the apartment. However, on the record before me, I find that such concerns would be speculative. The defence argues that the two occasions on April 11, 2018 when Mr. Cochrane was let into the building by an unknown woman (probably Ms Petersen), show some lack of control of the apartment on the part of Mr. Cochrane. However, I note that the observations on April 10 and 22, 2018 of Mr. Cochrane pushing a woman out of the building, and letting a male into the building, lean in the other direction. In the end, I cannot draw any inference as to why Mr. Cochrane was being let into the building by the woman on April 11, 2018. But I find that it is too non-specific to override the clear evidence that he had the legal tenancy, and he was living there (although not alone, but with Ms Petersen).

[45] However, the fact that Mr. Cochrane had control over the apartment by the fact that he held the legal tenancy, and had lived there for years, does not lead inevitably to the conclusion that he had knowledge that the drugs were in the apartment. There is no legal presumption that because he had the legal tenancy he possessed anything in particular in the apartment (in this case, the heroin). It is not in dispute that both Mr. Cochrane and Ms Petersen lived in the apartment. Both of them were present when the police arrived to execute the search warrant. As I have said, I infer that they were both sleeping prior to the arrival of the police.

[46] The prosecution argues that the 11.01 gram baggie of heroin on the floor in front of the closet was in plain view when the police entered the bedroom, and that this is a factor that should lead the court to find that Mr. Cochrane had knowledge of it (since it was in plain view). The prosecution argues that the court should find that the 11.01 gram baggie of heroin was on the floor prior to the police entry. In the alternative, the prosecution argues that if the court does not make that finding and finds that it is reasonably possible that the heroin was moved when the noise of the police entry woke Mr. Cochrane and Ms Petersen, the court should find that Mr. Cochrane moved it, because when the officers entered the bedroom, he was on the bed, but in the process of getting up, and Ms Petersen was still on the bed.

[47] I have carefully considered these arguments, but I do not accept them. There is no evidence as to whether or not the 11.01 gram baggie of heroin was on the floor prior to the police entry into the apartment. When the police breached the main door to the apartment, they were not able to immediately enter the bedroom, because they had to take some time to gain control over the large dog in the apartment. How much time this took is not on the record before me. I am not suggesting it was a long time, but they were not able to immediately enter the bedroom. The police entered the apartment by breaching the door with a battering ram. I infer that this made a significant amount of noise – enough to wake Mr. Cochrane and Ms Petersen, and apparently enough to draw the attention of the large dog in the apartment.

[48] As a matter of common sense, it seems to me unlikely that whoever in the apartment had possession of the heroin would store 11.01 grams of it on the floor. Putting this together with the noise of the police entry, the delay getting to the bedroom caused by the dog, and the absence of evidence as to where the 11.01 gram baggie of heroin was before the police entered, I am not satisfied that the 11.01 gram baggie of heroin was in plain view prior to the police entry. It seems reasonably possibly to me that either Mr. Cochrane or Ms Petersen took the 11.01 grams of heroin in the baggie and moved it when they heard the police enter, in a failed attempt to hide it. I do not find that the fact that Mr. Cochrane was in the process of getting out of the bed, when both were still on the bed, is enough to lead me to conclude that it was he who moved the drugs (if that is what happened). There is no evidence before the court regarding whether Mr. Cochrane or Ms Peterson was closer to the closet from whatever side of the bed each was on. In any event, I am not persuaded that the evidence supports a finding that the 11.01 gram baggie of heroin was in plain view prior to the police execution of the warrant.

[49] I want to be clear that in finding that I am not satisfied that the 11.01 gram baggie of heroin was on the floor (in plain view) prior to police entry, I am not holding that direct evidence of the location where drugs were prior to police entry would be necessary in every case to find that they were in the same location prior to police entry as when the police entered. Very often that will not be required. The drugs in the top left dressed drawer in this case provide a good example of that. The .2 grams of heroin in the top left dresser drawer was found in a drawer (a more likely storage place than the floor), and in the presence of other items associated with drugs – the empty small baggies, the digital scale, and rolling papers. Based on these facts, I would infer that the smaller amount of heroin (.2 grams) drugs was in the same location (the top left drawer) prior to the police entry.

[50] In the absence of a finding that the 11.01 gram baggie of heroin was in plain view prior to the police entry, and the reasonable possibility that either Mr. Cochrane or Ms Petersen moved it when they heard the police breach the door, I ask whether there is anything about the location of either the .2 grams of heroin the top left drawer of the dresser, or the 11.01 grams of heroin on the floor in front of the closet, or any other items, that would lead me to find beyond a reasonable doubt that Mr. Cochrane was either in sole possession or joint possession, or to rule out as speculative the inference that Ms Petersen was in sole possession of the heroin? I find that there is not.

[51] The location of the 11.01 grams of heroin on the floor in front of the closet does not point to one or the other of Mr. Cochrane or Ms Petersen. And in the absence of a finding that the 11.01 grams of heroin was there in plain view prior to the police entry, it does not necessarily point to both of them having knowledge.

[52] With respect to the items in the top left dresser drawer (.22 grams of heroin, the digital scale, the box with a number of empty skull logo baggies), the prosecution argues that the evidence supports that it was Mr. Cochrane’s drawer, because in their submission, if one reviews the photos of the items in the drawer, one can draw the conclusion that there are male clothes, in particular men’s underwear, in the drawer. I have reviewed the photos. I am unable, based on the photos of the dresser drawer contents, to draw a conclusion as to whether the clothes in the drawer where the .22 grams of heroin and the scale were found are exclusively men’s clothes, exclusively women’s clothes, or a mix of both. And as I have outlined above, although the officers who testified said that there were clothes in the drawer, none of them were able to provide any detail about the clothing, such as whether or was men’s or women’s clothing.

[53] There is no forensic evidence such as fingerprint or DNA identification evidence to tie the drugs to either or both of Mr. Cochrane or Ms Petersen.

[54] Ms Petersen, who is not charged on the indictment before the court, was not called as a witness at trial.

[55] In the end, this case comes down to whether the inference that Ms Petersen was in sole possession of the heroin is a speculative inference. Prosecution counsel argue that the inference that Ms Petersen was in sole possession of the drugs and the money is unreasonable. They argue it is an unreasonable because Mr. Cochrane had control of the apartment, and that it would be unreasonable to find that he did not have knowledge of the presence of the heroin because the 11.01 grams was in plain view when the police entered the bedroom, and because it was a very small apartment, and small bedroom.

[56] With respect, I disagree with the submission of prosecution counsel that sole possession of the heroin by Ms Petersen would be an unreasonable inference on the record before the court. Both Mr. Cochrane and Ms Petersen were arrested at the time of the search. For reasons not before the court, Ms Petersen is not charged on the indictment before the court. Nor was she a witness at trial. Given the fact that she lived in the apartment, and that she was present and had been sleeping in the apartment just prior to the police arrival; given my finding that it unlikely the 11.01 grams of heroin was stored on the floor, and thus it is not established that it was in plain view for any length of time; given that the smaller quantity of heroin (.22 grams) was found in a drawer, and the evidence does allow me to tell if one or the other or both of Mr. Cochrane and Ms Petersen used that drawer; I find that it is a reasonable possibility that Ms Petersen possessed the heroin alone. That is not a speculative inference on the record before me.

[57] I have considered that it was a relatively small apartment (a conclusion I base on the evidence of the officers, and also on the photos taken at the time of the search). But I find that the size of the apartment is not sufficient to persuade me that as occupants of the apartment, Mr. Cochrane and Ms Petersen would necessarily know all of the activities the other was engaged in. Common sense and experience tells us that couples, even those who live together in small apartments, do not necessarily know everything that each other does.

[58] As the Supreme Court held in Lifchus, the prosecution’s burden of proof beyond a reasonable doubt is a heavy one. On the record before me, I am not satisfied beyond a reasonable doubt that the prosecution case proves that Mr. Cochrane was in possession of the heroin either alone, or jointly with Ms Petersen. I am not satisfied that either of these inferences are the only reasonable inferences available on the evidence.

[59] A third reasonable inference which is available on the record before me is that Ms Petersen was in sole possession of the heroin. I am not suggesting that this inference is more probable than the inferences that Mr. Cochrane was in sole possession or that he was in joint possession with Ms Petersen. But the inference that Ms Petersen was in sole possession is a reasonable inference on the record before me. It is not speculative.

[60] Before concluding, I want to briefly address two other aspects of the evidence – the surveillance evidence, and the wallet containing Mr. Cochrane’s identification and $166.25 in cash.

[61] With respect to the surveillance, the submissions made by the prosecution only relied on the meetings observed in the surveillance on the days prior to April 23, 2018 in relation to the “for the purpose” aspect of the offence charged. In my view they may also be considered as part of the whole package of circumstantial evidence on this issue of whether possession has been proven. Thus, I have considered in the context of the evidence as a whole the evidence of the short meetings that Mr. Cochrane was observed to have with the unknown male with the outstanding drug possession charges on April 11 and 22, 2018, and with another unknown male on April 22, 2018. Ultimately, I find that it is too little and too inconclusive to add much to the mix on the issue of possession.

[62] I accept as a matter of principle that observations of a defendant engaging in conduct that a court could find appear to be drug transactions could be probative on the issue of whether the defendant is in possession of drugs later found (and also on the issue of the purpose of the possession). The difficulty I have in this case is that three short meetings, with nothing more, is not, in my view, enough to say that those meetings look like drug transactions. The brevity of the meetings does not speak for itself. Indeed, Mr. Cochrane had other brief attendances at other places in the same time period, attending on two occasions at two different convenience stores on the evening of April 22, 2018, each for about one minute. I note as well that there is no evidence that either of the men that Mr. Cochrane met on those dates was soon after found to be in possession of drugs. And I am not persuaded that the fact that one of the men had outstanding drug charges at that time in April 2018 should lead me to conclude that the meetings look like drug transactions – charges which I was never told whether they were ever proven.

[63] With respect to the wallet, I have no difficulty concluding that it is Mr. Cochrane’s wallet, since it contained several pieces of his identification, and did not contain anyone else’s identification. I note that the wallet was not found in the same location as the heroin, but rather was found in a different room. Further, the $166.25 in the wallet has no probative value regarding an inference of drug possession or drug trafficking. I take notice that $166.25 is an amount of money that is not at all unusual for an individual to carry in their wallet or purse.

[64] In light of my conclusion that the prosecution has not proven beyond a reasonable doubt that Mr. Cochrane possessed the heroin, it is not necessary for me to consider the “for the purpose” issue.

Conclusion

[65] For these reasons, I find that the prosecution case fails to satisfy me beyond a reasonable doubt that Mr. Cochrane is guilty of possession of heroin for the purpose of trafficking. I find Mr. Cochrane not guilty.

[66] I reiterate my thanks to counsel for their assistance during the trial. In particular, counsel’s collegiality in working together to narrow the issues was of great assistance to the court.

Justice J. Copeland Released: March 11, 2021

Footnotes

[1] Prosecution counsel withdrew a count charging simple possession of methamphetamine at the outset of the trial, prior to arraignment.

[2] The officer who testified about finding this item described it as a satchel. Based on the photos, I would describe it as a large wallet.