COURT FILE NO.: CR-20-90000142-00MO

DATE: 20210621

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON COONEY

J. Mitschele and E. Lo Re, for the Crown

S. O’Neill, for Mr. Cooney

HEARD: 27 May 2021

WARNING:

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY –

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

s.a.Q. akhtar j.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The respondent, Jason Cooney, was jointly charged with a co-accused, Frank Lee, of possession of two kilogrammes of methamphetamine (crystal meth) for the purposes of trafficking. Their preliminary inquiry was held on 5 and 6 October 2020. At the conclusion, the preliminary inquiry judge committed Mr. Lee on all charges but discharged the respondent.

[2] The Crown seeks an order of certiorari to quash the discharge order and mandamus directing the judge to commit the respondent for trial.

[3] For the following reasons, I grant the Crown’s application.

Background Facts

[4] Project “INKED” was a major investigation spanning a three month time period.

[5] On 14 November 2019, investigating officers were conducting surveillance on Tuan Bui, the primary target of the operation. Mr. Bui was initially seen in Hamilton and followed to Toronto. At 3:53 p.m., he was seen exiting his apartment building at 215 Fort York Boulevard in the city wearing a beige backpack and entering a Toyota Sequoia before driving away.

[6] Police shadowed Mr. Bui’s car which drove eastbound before turning south onto Capreol Court, a side street situated between Spadina Avenue and Bathurst Street, stopping just south of a roundabout. Police observed a Mercedes Benz parked on the east side of Capreol Court just south of Mr. Bui’s car. The Mercedes had two occupants, Mr. Lee and the respondent sitting in driver’s and front passenger seat respectively.

[7] After parking, Mr. Bui immediately exited his car retrieving a blue Walmart shopping bag from the rear of the vehicle. He crossed the street and entered the Mercedes through the rear driver’s side door. Twenty to thirty seconds later Mr. Bui left the Mercedes without the Walmart bag and returned to his own car.

[8] The Mercedes immediately drove off followed by police who stopped the car approximately ten minutes later near Spadina Avenue and Cameron Street. Searching the car, police found the Walmart bag on the rear driver’s side of the car. When examined, they found two zip lock bags containing 2,016.23 grams of crystal methamphetamine inside.

The Preliminary Inquiry Judge’s Reasons

[9] After hearing the evidence, the preliminary inquiry judge committed Mr. Lee for trial at the Superior Court of Justice but discharged the respondent. His brief reasons are reproduced as follows:

I think probably is obvious to everyone based on my interaction, I will call it that, but - or interruptions of Mr. Lo Re that there is sufficient evidence to commit Mr. Lee on all counts. So Mr. Lee, you are going to be committed to stand trial in accordance with your election.

But with respect to Mr. Cooney, the only facts that I can see that implicate him in the charges as a matter of law, other than as a matter of suspicion, is his presence in the car, his presence at the scene. I cannot identify any other facts that implicate him either in a position of control with respect to the vehicle, or with respect to the bag that is sitting in the backseat. And in the absence of any factual basis for the inferences that the Crown is relying on, I do not think that those inferences are reasonable. And for those reasons, Mr. Cooney will be discharged.2”

LEGAL PRINCIPLES

The Test for Committal

[10] The Criminal Code, R.S.C. 1985, c. C-46, provisions relating to committal can be found in s. 548(1), which reads as follows:

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] In United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080, the Supreme Court of Canada instructed that sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, mandated committal of an accused to stand trial on those charges.

[12] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.

[13] The preliminary inquiry judge is permitted to engage in a “limited weighing” exercise when the Crown relies upon circumstantial evidence to justify committal. When it does, the judge cannot draw inferences from facts or assess credibility but may evaluate “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30; R. v. Jackson, 2016 ONCA 736, at para. 6. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Wilson, 2016 ONCA 235, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.

[14] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080. It is also important to note that, on review, the preliminary inquiry judge’s determination of the sufficiency of the evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

[15] However, the preliminary inquiry judge must consider the “whole of the evidence” tendered during the preliminary inquiry as it is clear that “Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence”: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 18.

[16] At the same time it is not a jurisdictional error “for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b)”: Deschamplain, at para. 23.

[17] In Sazant, at para. 25, the Supreme Court of Canada identified three ways in which jurisdictional error might occur in the context of a preliminary inquiry:

(1) where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law;

(2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and

(3) where the judge fails to consider the whole of the evidence.

ANALYSIS

[18] Did the Judge Choose Between Competing Inferences?

[19] The Crown argued committal on the basis that an inference could be drawn that the respondent could be inferred to have been in joint possession of the drugs found in the Mercedes.

[20] Section 2 of the Controlled Drugs and Substances Act adopts the definition of possession contained in s. 4(3) of the Criminal Code which provides:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly:

(i) has it in the actual possession or custody of another person or

(ii) has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or another person; and

(b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[21] In R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), at para. 16, the court described joint possession requiring “knowledge, consent and a measure of control on the part of the person deemed to be in possession”. Circumstantial evidence is capable of establishing knowledge of the controlled drugs: Pham, at para. 17.

[22] In this case there was clearly some evidence of all three components of joint possession of the crystal meth as well as evidence that its possession was for the purposes of trafficking.

[23] A similar factual scenario occurred in R. v. Duvivier, 2010 ONCA 136, where 26.92 grams of crack cocaine were found on the centre console of a vehicle with two occupants, one seated in the driver’s seat and the other on the front passenger side. The drugs were concealed in an opaque grocery bag which was knotted into a golf ball shape. At para. 5, the court held:

This was evidence of the physical proximity of the drugs to the appellant, the degree of visibility of the drugs, the shared use of the vehicle at the time of the appellant's arrest, the quantity and value of the drugs seized, the size and nature of the bag containing the drugs, the presence of equipment - cell phones - normally used in drug trafficking, and possession by the appellant of monies in a form and amount consistent with drug trafficking.

In combination, this evidence provided the basis on which the jury could properly infer knowledge and control of the crack cocaine by the appellant sufficient to establish his possession of the drugs.

[24] Many of the same factors exist in this case.

[25] In R. v. Noddle, 2009 ONCA 207, the accused was sitting in the passenger seat of a vehicle parked in an empty hotel parking lot. His co-accused was in the driver’s seat. Neither were owners of the car nor knew who owned the vehicle. Police discovered a loaded handgun and face mask in the glove compartment on the passenger side along with 240 grams of crack cocaine beneath the passenger seat. The driver was found wearing a bullet proof vest. When police arrived the accused left the car to speak to them without being asked. The preliminary inquiry judge discharged the accused on the basis that there was “a much more persuasive case against the driver in respect to having knowledge and control over things that are in the car”.

[26] On appeal, the court, in a very brief endorsement, found jurisdictional error because the judge had weighed competing inferences instead of focusing on whether the inferences sought by the Crown were available on the evidence. In the court’s view, “the cumulative effect of the evidence supports a committal for trial on all charges”.

[27] I find the judge made the same error in this case.

[28] This was clearly a circumstantial case and as such, the preliminary inquiry was entitled to engage in a limited weighing of the evidence. However, he had to draw the most favourable inferences to the Crown.

[29] Circumstantial inferences are ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. Those inferences cannot be based on speculation or conjecture: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 530. However, a reasonable and logical inference to be drawn from circumstantial evidence need not flow easily from the facts. In other words, a difficult inference can also be logical and relevant: R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 40. Nor need the inference be a likely or probable inference. Even if it is a difficult inference to draw, the inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage: R. v. Dwyer, 2013 ONCA 368, at para. 4.

[30] In this case, the clear inference was that Mr. Lee had driven the Mercedes to a pre-arranged location to receive the drugs. Mr. Bui entered the car and re-emerged some 30 seconds later after which the Mercedes departed. The court had to draw the available inference that the occupants of the car were aware that Mr. Bui had entered the vehicle and left the bag. When the car was stopped some nine minutes later, the crystal meth was found on the rear driver’s side in plain view of both occupants. Again, there was evidence of knowledge and consent.

[31] The inferences to be drawn from the evidence were that either Mr. Lee or the respondent alone were involved in receiving the drugs or that both men were. Both had equal exclusive control of the bag, both could take the bag, open it, empty it or dispose of it. In other words, one of the available inferences was that both Mr. Lee and the respondent had joint possession of the controlled substance.

[32] That being the case, the judge was obliged to draw that inference and commit both accused. By choosing amongst competing inferences, and failing to draw the one most favourable to the Crown, the preliminary inquiry judge committed jurisdictional error: R. v. Zamora, 2021 ONCA 354, at para. 33.

[33] Here, the judge focussed almost entirely on the issue of “presence” alone. It is unclear to me how mere “presence” distinguished the respondent from Mr. Lee for the purposes of committal.

[34] It may well be that, at trial, the respondent can argue that he knew nothing of the drugs despite being an occupant of the car. In other words, that he was merely “present” but had nothing to do with the drugs. However, that is a matter reserved for the jury’s consideration and not committal.

Did the Judge Fail to Consider the Whole of the Evidence?

[35] I would also find that the preliminary inquiry judge committed jurisdictional error by failing to consider the whole of the evidence. By basing his decision entirely on the fact that the respondent’s presence in the car formed the “only facts” that could implicate him in the charge, he ignored all of the other facts outlined in preceding paragraphs which constituted some evidence of joint possession.

CONCLUSION

[36] For these reasons, the Crown’s application for certiorari is granted and the preliminary inquiry judge’s order discharging the respondent is quashed. As I find committal is inevitable on the proper application of the law, I also issue an order of mandamus remitting the matter back to the preliminary inquiry judge and directing him to commit the respondent for trial on all counts.

[37] The respondent is ordered to appear at 10:00 a.m. on 14 July 2021 at the Old City Hall courthouse.

S.A.Q. Akhtar J.

Released: 21 June 2021