ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-23-0007
DATE: 2024-06-05
BETWEEN:
HIS MAJESTY THE KING
– and –
Derrick Frederick Thompson
S. Salo, for the Federal Crown
M. Tomassini, for Derrick Thompson
HEARD: March 4 and 5, 2024
ORAL REASONS FOR JUDGMENT
s.k. stothart, J.
Overview
[1] Derrick Thompson is charged with five counts on an indictment dated February 3, 2023. This trial proceeded only in relation to count 2 which alleges that on April 20, 2021, Thompson possessed cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] On April 20, 2021, the Ontario Provincial Police (“OPP”) executed search warrants on the upstairs and rear apartments at 39 Main Street, Kirkland Lake. During the search of the rear apartment the police found a locked black box that contained a large sum of bundled money and seven small individual bags containing cocaine. It is admitted that the nature and quantity of the drugs found is consistent with drug trafficking. The sole issue in this trial is whether the Crown has proven beyond a reasonable doubt that the accused “possessed” the contents of this locked black box.
Evidence at Trial
Surveillance
[3] The OPP believed that Thompson was selling drugs from an upstairs apartment at 39 Main Street and that he stored his drugs in the rear apartment of this same building. In March 2021, the police installed a surveillance camera behind the building that was able to capture any activity outside the entrances to both apartments.
[4] The upstairs apartment at 39 Main Street is accessed by way of an outside side door (the “side door”) that leads upstairs to an apartment. The rear apartment has its own separate entrance located at the back of the building (the “rear door”).
[5] Detective Constable Graham Robertson testified that he watched portions of the surveillance camera recordings starting on March 30 and every fourth day after that until April 19, 2021. At trial, he testified that he observed the following activity:
a. On March 30, 2021, at 10:00 p.m. a female came out of the rear apartment and entered the side door leading to the upstairs apartment. This person came back out thirty seconds later and returned into the rear apartment. Shortly after the female left with a dog on a leash and walked towards the rear laneway;
b. On April 3, 2021, at 9:20 p.m. an individual came out of the rear apartment and entered the side door leading to the upstairs apartment. This person came back out five minutes later and returned into the rear apartment; and
c. On April 11, 2021, at 8:13 p.m. a delivery truck appeared to deliver a number of white boxes to the upstairs apartment. At 8:16 p.m. a male came out of the rear apartment, entered the side door to the upstairs apartment, and then came back out carrying what appeared to be a box. This person went back into the rear apartment.
[6] In addition, Robertson testified that he observed other individuals going in and out of the side door leading to the upstairs apartment. He testified that he observed:
a. On March 30, 2021:
i. 7:36 p.m. - a person entered the side door and left three minutes later;
ii. 7:42 p.m. – a person exited a red SUV, entered the side door, and left two minutes later;
iii. 7:58 p.m. - the red SUV returned, a person entered the side door, and left one minute later; and
iv. 8:15 p.m. – a person entered the side door and left four minutes later,
b. April 3, 2021:
i. 8:23 p.m. – a person entered the side door and left five minutes later.
c. April 7, 2021:
i. 7:52 p.m. – a person entered the side door and left six minutes later; and
ii. 8:48 p.m. – a person entered the side door and left five minutes later.
d. April 11, 2021:
i. 8:45 p.m. – a person entered the side door and left after one minute.
e. April 15, 2021:
i. 9:18 p.m. – a person entered the side door. Nineteen minutes later, two people exited from the side door and got into a vehicle and left.
f. April 19, 2021:
i. 4:19 p.m. – a person entered the side door and left after one minute; and
ii. 4:33 p.m. – a person entered the side door and left after one minute.
[7] Robertson also testified that during his own surveillance he observed Thompson washing an ATV outside of the building on April 19, 2021.
Execution of the search warrants
[8] On April 20, 2021, the police executed search warrants on both the upstairs and rear apartments. The warrants were executed between 8 a.m. and 10 a.m.
Search of the upstairs apartment
[9] When the police executed the warrant on the upstairs apartment, Thompson was the only one inside the apartment and he attempted to push the door closed when police arrived. The police forced their way into the apartment and Thompson was arrested. When Thompson was searched, the police located $405 in the top left pocket of his jacket.
[10] When the police searched the upstairs apartment, they found the following:
a. On the kitchen counter -Five bundles of cash totaling $5000;
b. On the kitchen counter -A set of keys. One of these keys fit into the side door entrance to the upstairs apartment;
c. On the kitchen counter - $50 bill;
d. On the kitchen counter – an I-phone. When powered on it displayed a snapchat from Christopher Renaud;
e. On the kitchen counter – a functioning scale with a paper fold on it, containing a white residue believed to be cocaine;
f. Top drawer, to the left of the stove, in the kitchen – a clear ziplock bag containing 4.5 grams of a white power believed to be cocaine;
g. Top drawer, to the left of the stove, in the kitchen - several empty dime bags;
h. Inside a kitchen drawer – a bank card and driver’s license in the name of Derrick Thompson;
i. Inside a kitchen cupboard – a bottle of creatine monohydrate;
j. Inside a kitchen drawer – a birth certificate in the name of Derrick Thompson and a virtual visa debt card;
k. In a bedroom – a book with numbers, equations and names noted; and
l. A bill in the name of Derrick Thompson from the Great Outdoor Centre listing the upstairs apartment address.
[11] When the cell phone located in the upstairs apartment was examined, police found two photographs depicting an open black lock box, with a key inserted, containing a large amount of cash and two small baggies of what appears to be cocaine.
[12] Police also found a text exchange on this phone between “dickie1966” and “Chris Renaud” dated April 20, 2021 at 12:08 p.m. In the text exchange “dickie1966” writes “Being [sic] up safe when u come” and “Chris Renaud” responds “ok”.
Search of the rear apartment
[13] When the police executed the search warrant on the rear apartment, they found the door to be locked. The police breached the door and located Christopher Renaud and Brenna Renaud inside the apartment. Both were placed under arrest.
[14] Shortly after her arrest, Brenna Renaud was released unconditionally. She was allowed to collect some of her belongings, including her dog, and left. The police did not search her.
[15] When the police searched the rear apartment, they found the following:
a. In the master bedroom – 820 tabs believed to be methamphetamine (“speed tabs” or “meth tabs”), three bags of cocaine, cannabis, and 8 bags of hash;
b. In the master bedroom, on top of the bed – an I-phone;
c. In the master bedroom – on top of a laundry basket - express post packaging addressed to Derrick Thompson at 2 Upstairs, 39 Main Street, Kirkland Lake; and
d. On the kitchen counter near the microwave – a black garrison lock box. The box was forced open and inside were 8 bundles of cash totaling $8000 and 7 baggies of cocaine.
[16] Robertson testified that he took the set of keys that were located on the kitchen counter in the upstairs apartment and brought them down to the rear apartment. He inserted one of the keys into the black lock box and it opened the box. The police took a photograph of the key inserted into the black lock box, which was entered as an exhibit at trial.
The Law
The standard of proof
[1] The accused is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. It is not enough for the Crown to prove that the accused is probably or likely guilty. The Crown bears the burden of proof throughout the entire trial, from beginning to end. The accused does not have to present evidence or prove anything.
[2] The Crown is not required to prove the accused’s guilt to an absolute certainty. Such a burden would be nearly impossible to meet. Nevertheless, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.
[3] Reasonable doubt must stem from reason and common sense and be logically connected to the evidence or lack thereof. It cannot be based on sympathy, pity or prejudice. A doubt is not an imaginary, frivolous or irrational doubt. It cannot be grounded in hypotheticals, speculation, or fanciful conjecture: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 at para. 36.
Circumstantial evidence
[4] Where the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33 at para. 20.
[5] In determining whether the circumstantial evidence meets the required standard of proof, a trial judge must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Lights, 2020 ONCA 128 at para. 37.
[6] A trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence. However, the Crown does not have negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the accused’s innocence: R. v. Villaroman, at paras. 37-38; R. v. Lights, at para. 38.
[7] A trial judge must be cautious and not to try to “fill in the blanks” or bridge gaps in the evidence to support inferences of guilt: R. v. Villaroman, at para. 26.
[8] It is incumbent upon a trial judge to explore other reasonable inferences or plausible theories which are inconsistent with guilt, weigh them, and provide a rational explanation why they are rejected: R. v. Villaroman, at para. 37; R. v. Morrison, 2024 NBCA 35 at para. 58.
[9] If the evidence is reasonably capable of supporting an inference other than the guilt of the accused, an acquittal must ensue: R. v. Cobb, 2022 QCCQ 1435 at para. 109.
Possession
[10] Culpable possession may be personal, joint, or constructive: R. v. Pham 2005 44671 (ON CA), [2005] O.J. No. 5127 (Ont.C.A.) at para. 14, affirmed 2006 SCC 26.
[11] Constructive possession arises where the accused does not have physical custody of the object in question but has it in the actual possession or custody of another person or in any place whether or not that place belongs to or is occupied by him/her for the use or benefit of him/herself or another person. Regina v. Morelli, [2010] 1 S.C.R. at para. 17; R v. Lights, at para. 47.
[12] Knowledge and control are essential elements of constructive possession. It is established when the Crown proves beyond a reasonable doubt that the accused:
a. has knowledge of the character of the object said to be possessed;
b. knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and
c. intends to have the object in the place for the use or benefit of the accused or another person.
[13] In order to establish constructive possession, the Crown must prove that the accused had knowledge of the object, which extends beyond mere passive knowledge, and some measure of control over the item to be possessed. R. v. Pham, at para. 15.
[14] Joint possession occurs where one of two or more persons, with the knowledge and consent of the others, have a substance in their possession or custody. In these circumstances, all of the persons are deemed to be in custody and possession of the item. Knowledge and agreement by the others who are not in actual possession of the substance is essential: R. v. Masters, 2014 ONCA 566 at para. 18.
[15] In order to establish possession, the Crown must prove a measure of control over the thing said to be possessed. Neither knowledge nor wilful blindness, alone, can in law establish possession: R. v. Tyrell, 2014 ONCA 617 at para. 36; R. v. Chalk, 2007 ONCA 815; R. v. Pham at para. 16.
[16] The mere presence of an accused, without more, in a location does not necessarily establish that the accused had knowledge and control over items located in that location. Occupancy does not create a presumption of possession: R. v. Lights, at para. 50; R v. Lincoln, 2012 ONCA 542 at para. 3.
[17] Both knowledge and control may be proven by circumstantial evidence: R. v. Pham, at para. 18; R. v. Sparling, [1988] O.J. No. 1877 (Ont.C.A.) at para. 17.
[18] Where proof of an essential element or the offence charged depends wholly or substantially on circumstantial evidence, it is the cumulative effect of all of the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: R. v. Gibson, 2021 ONCA 530 at para. 79.
[19] When the Crown relies largely or wholly on circumstantial evidence to establish possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. In assessing the whole of the evidence, a trial judge must determine whether any other proposed way of looking at the case is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically, and in light of human experience and common sense: R. v. Choudhury, 2021 ONCA 560 at para. 19; R. v. Villaroman, paras. 55-56; R. v. Lights, para. 39.
Analysis
[20] The Crown submits that Thompson was either in constructive possession or joint possession of the drugs located inside the black lock box located in the rear apartment.
[21] The Crown acknowledges that its case rests entirely on circumstantial evidence. It submits that when the evidence is considered as a whole, the only reasonable inference that can be drawn is that Thompson knew about the drugs inside the black lock box and had a measure of control over them.
[22] The Crown points to the following evidence in support of what it says is the only reasonable inference that Thompson had a measure of control over the black lock box and knowledge of its contents:
a. Thompson was found in the upstairs apartment on the day of the search;
b. There was circumstantial evidence that Thompson resided in the upstairs apartment;
c. A keychain was found on the kitchen counter in the upstairs apartment. One key on this keychain opened the door to the upstairs apartment and another key opened the black box;
d. A text message exchange was found on Thompson’s phone between Thompson and Chris Renaud that said “Being up safe when u come”. The Crown submits this is a request by Thompson to Renaud to bring the black lock box to the upstairs apartment;
e. Two photographs depicting a similar black lock box containing a large amount of cash and two bags of what appears to be cocaine were located on Thompson’s phone;
f. The black lock box depicted in the two photographs appears to be sitting on a counter that is similar to the kitchen counter in the upstairs apartment;
g. Evidence found in the upstairs apartment was indicative of drug trafficking, such as the presence of dime bags; a functioning scale with cocaine residue on it; a bag of cocaine; and a large amount of money bundled together;
h. The bags containing cocaine located in the black lock box found in the rear apartment are similar to bags found in the upstairs apartment (the dime bags); and
i. The surveillance evidence is supportive of an inference that someone in the upstairs apartment was trafficking drugs because it shows individuals attending the apartment for very short periods of time.
[23] The Crown submits that the evidence establishes that Thompson possessed a key to the locked black box located in the rear apartment. The Crown submits that a key is one of the strongest indicators of possession. Having a key solidifies ownership and/or possession of items that are locked up. It demonstrates an intent to excludes others which establishes control.
[24] As I conduct my analysis, I am mindful that I must consider the cumulative effect of all of the evidence to determine if the standard of proof has been met. As such, while I will discuss some individual aspects of the evidence, I will then go on and assess the evidence as a whole in my determination of whether I am satisfied, beyond a reasonable doubt that the only reasonable inference available on the evidence is the accused’s guilt.
Thompson’s connection to the upstairs apartment
[25] There is some evidence that links Thompson to the upstairs apartment. He was present when the search warrant was executed. He was observed by the police washing an ATV outside of the apartment building the day before. During the search the police found a driver’s license, birth certificate, bank card and a bill from the Great Outdoor Centre in the accused’s name listing the upstairs apartment inside kitchen drawers.
[26] There was no evidence that the police ever observed Thompson going in or out of the side door leading to the upstairs apartment during their surveillance between March 30th and April 19th. One would expect if the Thompson lived in the upstairs apartment he would have been seen going in or out on a regular basis.
[27] I received no evidence about who leased the upstairs apartment. Further, I received no evidence about contents of the upstairs apartment that would be indicative of who resided there, such as male or female clothing in the closets or personal hygiene items in the bathroom.
[28] The photographs taken during the search depict other items in the kitchen drawer including a blue wallet, mail, and prescription medication. I did not receive evidence about any names associated with those items. In the photograph depicting the blue wallet, there appears to be a card inside the wallet that is associated with “native women” and “women in mining”. I have received no explanation for this.
[29] With respect to the documentation in Thompson’s name found inside the apartment, while it may be reasonable to infer that a person will leave their personal papers in a location over which they have some measure of control, this is not always the case. Each case must be looked at contextually: R. v. Emes, 2001 3973 (ON CA), [2001] O.J. No. 2469 (Ont.C.A.) at paras. 7-8; R. v. Chambers, 2004 BCSC 1139 at para. 20.
[30] In this case, the driver’s license in Thompson’s name, found in the kitchen cupboard, listed his address as 13 Wood Street, Kirkland Lake. The face of the license indicates that it was issued on March 22, 2021, less than one month prior to the execution of the search warrant. This is evidence that Thompson may have been residing elsewhere.
[31] While I heard some evidence that Thompson was on judicial interim release with a term to reside at the Main Street address, this was hearsay evidence. A copy of the judicial interim release order was not tendered at trial.
Thompson’s connection to the rear apartment
[32] There was very little evidence led at trial that connected Thompson to the rear apartment. There was no evidence that he either resided or even visited there. There was no evidence that he had ever been observed going into the rear apartment either before or during the period of surveillance. The only evidence linking Thompson to the rear apartment was a piece of discarded packaging that was found on top of a laundry basket in Thompson’s name.
[33] When the police executed the warrant on the rear apartment, they found the door to be locked and the police were required to breach the door. There was no evidence that Thompson had a key to the rear apartment, or that any of the keys on the key ring seized from the upstairs apartment opened the door to the rear apartment.
[34] When the police entered the rear apartment, they located two individuals inside, Christopher and Brenna Renaud. There was some evidence that indicated that Thompson and Christopher Renaud knew each other by virtue of the text messages found on the cell phone seized from the upstairs apartment.
[35] Strangely, the text message between “dickie1966” and “Chris Renaud” located on the cell phone seized from the upstairs apartment stating “Being up safe when u come” appears to be dated April 20, 2021 at 12:08 p.m. This would have been after the search warrant was executed and while the cell phones seized during the search were in the possession of the police. I did not receive an explanation for this discrepancy at trial.
[36] The surveillance footage shows three short visits from the occupants of the rear apartment to the upstairs apartment, over a span of two weeks. It does not show any visits from the occupant of the upstairs apartment to the rear apartment. Nor does it show anyone carrying a black box between the two apartments.
The keys
[37] The Crown relies heavily on the fact that a set of keys were located in the upstairs apartment and one of those keys unlocked the black lock box located in the rear apartment.
[38] I agree that the possession of a key can, depending on the totality of circumstances, provide strong evidence of possession.
[39] In this case there are factors which diminish the significance of the key:
a. The keys were not found on the accused’s person;
b. The keys have no identifiers that would link them to the accused;
c. There was no evidence that the contents of the USB stick attached to the key fob were connected to the accused;
d. There was no evidence that any of the keys on the key fob opened the door to the rear apartment; and
e. There was no evidence that the key that fit the black box was the only key for that box. There was no evidence that the police searched the rear apartment (or the occupants) for keys to the black box.
The photographs
[40] The Crown points to two photographs that were located on the cell phone located in the upstairs apartment. Those photographs depict a black lock box, containing cash and two small bags of what appears to be cocaine. Inserted into the black box are a set of keys.
[41] I received very little evidence that linked this cell phone to the accused, other than the fact that it was found in the upstairs apartment at the time the search warrant was executed. I have received no evidence that the phone was registered in the accused’s name or that it contained items connected to the accused.
[42] Although the cell phone was forensically examined by the police, I have not received any evidence about whether these two photographs were taken using the I-phone and saved on the phone or whether the two photographs were received from someone else and saved on the phone.
[43] The photographs depict a large amount of cash and two bags of cocaine in a black lock box. During the search the police found a larger amount of cash and seven bags of cocaine inside the black lock box. Assuming that the photographs are of the same black lock box, the photographs demonstrate that the contents of the box are subject to change.
Totality of the evidence
[44] While I have commented on individual pieces of evidence, I am mindful that I must consider the totality of the evidence in determining whether the Crown has proven beyond a reasonable doubt that the accused either jointly possessed or constructively possessed the drugs found in the rear apartment.
[45] When I consider the totality of the evidence, I am not satisfied that Thompson’s possession, whether it be joint possession or constructive possession, of the contents of the black lock box is the only reasonably inference on all of the evidence.
[46] I find that the evidence is equally consistent with the occupants of the rear apartment, the Renauds, having possession of the black lock box in their apartment and exercising sole control over its contents. I make this finding based not only on the evidence provided at trial and but also on the lack of evidence related to the two apartments and their contents.
[47] As I have already discussed, while there is some evidence connecting Thompson to the upstairs apartment, his connection remains unclear. He was certainly present on the day of the search and his identification was found in a kitchen cupboard. Other than that, I have received no evidence that Thompson resided in the upstairs apartment. Even if I were to find that he resided there, there is no evidence with respect to whether he resided there alone or with someone else.
[48] While the police located a keyring in the upstairs apartment, I have no evidence that links this keyring to Thompson. Thompson’s fingerprints were not located on the keyring. There was a USB drive attached to the keyring. I have received no evidence about what, if anything, was contained in the USB drive. I do not know if someone else resided in the apartment.
[49] While a key to the black box was attached to the keyring found in the upstairs apartment, I have no evidence that this is the only key to the black box. I have no evidence that the police searched Brenna Renaud for a key when they released her. I have no evidence that the police searched for any keys inside the rear apartment.
[50] There is no evidence that Thompson exercised any measure of control over the rear apartment, in which the black box was found. The rear apartment was locked when the police arrived. There was no evidence that Thompson had a key to the rear apartment or that he had ever attended at the rear apartment during the two-week period of surveillance.
[51] Based on a review of the totality of evidence, I am not satisfied that the Crown has proven that Thompson had the requisite measure of control required to establish constructive or joint possession of the contents of the locked black box, contained in the locked rear apartment.
[52] With respect to the issue of knowledge, I am not satisfied that the Crown has met its burden of establishing beyond a reasonable doubt that Thompson had knowledge of what was inside the black box on April 20, 2021.
[53] With respect to the photographs located on the cell phone seized from the upstairs apartment, I have no evidence about whether these photographs were taken using this cell phone, or whether they were sent to this cell phone. The photographs could have been sent by the Renauds.
[54] Even if I were satisfied that the black box in the photographs is the same black lock box located in the rear apartment, the photographs establish that the contents of that box are subject to change.
[55] When one considers the amount of drugs found in the rear apartment, it is reasonable to infer that the occupants of the rear apartment were trafficking in drugs, including the drugs contained in the black box.
[56] Without any evidence linking Thompson to the rear apartment or having access to the black box in the days leading up to the search, I cannot be satisfied beyond a reasonable doubt that he had knowledge of the contents of the locked black box on April 20, 2021.
Conclusion
[57] For the reasons set out above, I am left in reasonable doubt as to the accused’s guilt. As such, I must find him not guilty.
[58] An acquittal shall be entered with respect to count 2 of the indictment.
The Honourable Madam Justice S.K. Stothart
Released (orally): June 5, 2024
COURT FILE NO.: CR-23-0007
DATE: 2024-06-05
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Derrick Frederick Thompson
ORAL REASONS FOR JUDGMENT
S.K. Stothart, J.
Released orally: June 5, 2024