Court File and Parties
CITATION: R. v. Green, 2026 ONSC 3647
SUPERIOR COURT OF JUSTICE
RE: R. v. Jervain Green
BEFORE: Latimer, J.
COUNSEL: S. Nijjar for the PPSC / A. Newman for the Defence
HEARD: June 8, 2026
REASONS FOR DECISION
1These reasons will address four issues raised during this jury trial. The first three arose and were decided the morning of jury selection. The fourth was a successful directed verdict application two days later. I made all four rulings with reasons to follow. These are those reasons.
Issues #1-3 (June 8)
2Jury selection was scheduled to begin on June 8, 2026, at the Welland Courthouse. The courthouse is not large, nor does it have a jury assembly room. Jurors assemble in the hallways and are brought into Courtroom 1 at 10:00 a.m. for jury selection. While it is sometimes possible for judges and counsel to meet in a different courtroom (on the record, in the presence of the accused) ahead of time, those discussions are normally brief and exclusively related to case management issues.
3On June 8, I was responsible for selecting two juries. One, for R v. Lepine, a case to be tried by Justice Ramsay. The other, the jury for this matter, R v. Green. Counsel for this matter asked to speak in the absence of the jury before selection began, and we obtained Courtroom 6 for that purpose. This appearance began at approximately 12:10 p.m., after I had completed the Lepine jury selection and before the remainder of the panel was scheduled to return at 12:20 p.m.
4Three issues were raised by the parties during this appearance. I will address them in order.
5First, Mr. Green seeks a Parks challenge for cause. That is unopposed and easily granted.
6Second, Mr. Green, who is in custody, seeks approval to sit at counsel table. Mr. Newman, his counsel, filed a notice of application, factum and book of authorities on June 4, 2026, also known as last Thursday. The Crown today responded orally that they take no position.1
7Sixteen authorities have been referred to in the factum and provided by counsel. None are R v. Allred, 2026 ONCA 258, an authoritative judgment by the Court of Appeal for Ontario released earlier this year on precisely this issue. Whatever counsel’s intended argument may have been on the applicability of this decision – and to be clear, it is a binding decision that is directly on point – the presiding judge should have at least been made aware of its existence and been permitted to decide for themselves whether it is binding, persuasive or not. Had I not raised it myself, this application would have preceded in the absence of this authority. That would have been regrettable.
8Regarding the application itself, an in-custody accused person is presumed to sit in the prisoner’s dock: Allred, para. 93. I am not satisfied, taking into account all relevant considerations, that this presumption should be departed from. Courtroom 1 in the Welland Courthouse provides easy access between counsel and the dock, and the dock itself physically resembles the other historic wood furniture featured in the courtroom, i.e. it looks less custodial and more ceremonial. Taken with the jury instructions I provided on the topic, I am satisfied no prejudice attaches to Mr. Green’s placement in the dock during his trial. I am also satisfied that legitimate security concerns generally attach to individuals, like Mr. Green, in lawful detention and being transported each day from a correctional institute to the courtroom.
9Third, the Crown applied to adduce off-indictment allegations of drug trafficking to shore up their circumstantial case of possession. Some context for this application is required. The indictment charges conduct on April 4, 2019. It is alleged that Mr. Green was near a car with two other individuals and the police observed a bag being thrown away. The bag allegedly contained drugs. It is alleged that Mr. Green was the person who threw the bag and hence had possession of the drugs. Mr. Green’s brother is also alleged to have been in or near the vehicle.
10The Crown seeks to lead evidence that two weeks earlier, on March 19, 2019, Mr. Green and his brother were seen engaging in conduct that the Crown submits is consistent with drug trafficking. The Crown further wishes to call an expert witness (a police officer) to assist the jury in interpreting these earlier surveillance observations. The Crown’s position, overall, is that it is circumstantial evidence of prior drug trafficking that will assist the jury in deciding whether Mr. Green was in possession of drugs on April 4, 2019.2
11I note the Crown had provided notice of expert witness on this topic on June 5, 2026, also known as last Friday.
12Mr. Newman, for Mr. Green, submits that this proposed evidence is presumptively inadmissible or, in the alternative, significantly more prejudicial than probative. It will distract the jury, create a longer trial, and raise credible propensity-based reasoning concerns.
13For the following reasons, I agree with Mr. Newman:
a) The Crown’s notice of expert witness is statutorily non-compliant by a healthy margin: see section 657.3(3) of the Criminal Code. It is remarkable that, in a prosecution that has taken over seven years to reach trial, the Crown is attempting to file expert notice one juridical day before trial.
b) In my view, this evidence falls into the category of prior discreditable conduct, meaning it is presumptively inadmissible absent a written application by the Crown, pursuant to the Rules. Such an application is absent here. I appreciate that the line between circumstantial evidence and prior discreditable conduct is not easily drawn; not all conduct occurring outside an indictment’s timeframe is properly categorized as prior discreditable conduct. But, in this case, the passage of time and the nature of the evidence (observations of the defendant and his brother at a different location) combine to convince me that this evidence should have been addressed in a proper pre-trial application. The Crown seeks to prove a prior event and then invite the jury to infer that Mr. Green was drug trafficking before, so he must be involved in possession of these drugs prior to their discard on April 4. That sounds like prior discreditable conduct. I remind, again, that I am dealing with this issue orally while a jury panel is waiting.
c) Even if the normal rules of evidence apply, I remain convinced that the proposed evidence is significantly more prejudicial than probative. The probative value is diminished by the absence of the proposed expert (because of statutory non-compliance) and the reality that no charges were laid for whatever conduct is alleged to have occurred on March 19, 2019. As Justice Howden said in R. v. Rowe, 2012 ONSC 2600, at para. 32, the Crown’s failure to charge for earlier conduct diminishes their position that it is evidence capable of being understood as drug trafficking.
Regarding prejudicial value, this evidence will create a ‘trial within a trial’ of a different event on a different date. This will lengthen this proceeding and has the potential to distract from what the jury actually has to decide: whether Mr. Green was in possession of drugs and proceeds on April 4, 2019. I accept, as Howden J. did, that legitimate propensity concerns arise in context.
Issue #4 (June 10)
14Mr. Green is charged with two counts of possession of a narcotic (fentanyl and cocaine) for the purpose of trafficking. He is also charged with possessing proceeds (currency) obtained by crime. The Crown called five police officers during the presentation of their case. These officers, individually and collectively, did their best to remember details of an incident that occurred one year prior to the onset of the Covid pandemic, i.e. over seven years ago. The officers made plain to me and to the jury that multiple aspects of their recollections were clouded by uncertainty. At the close of the Crown’s case, the defence successfully moved for directed verdicts of not guilty. I will now review my reasons for that decision.
Key factual issue: Who threw the bag?
15A dog poop bag was found close to the scene of a dynamic takedown. The bag contained fentanyl and cocaine. The Crown submits that the defendant, Mr. Green, threw the bag away when confronted by the police. Their case hinges on that finding of fact.
16This ruling will focus on available proof of the identity of the bag thrower, as it is critical to the Crown’s case in this matter. However, that is not to say that I have not considered all available evidence on this directed verdict motion; I have. I have simply chosen to focus these reasons on the area that drives the result in this case.
17Factually, the relevant events occurred on April 4, 2019. A vehicle was physically rammed by a police cruiser in a parking lot of a hotel in Niagara Falls, and arrests quickly followed. There were three people in the vehicle, Mr. Green, his brother (now deceased), and a female. The jury received no information on the appearance of the brother or the female.
18Constable Purc, once of the first officers on scene, testified that he saw a male he believed to be the defendant throw a dog poop bag during a “chaotic” moment with “a lot of moving parts”, including the deployment of a “flashbang” distractionary device. He focused on the bag, as it flew in the air quite close to him. A male was arrested nearby. He believed that male threw the bag. That male was the defendant. At trial, over seven years later, he identified Mr. Green in dock. Mr. Green was one of only two black males in the room. The other was a special constable in uniform.
19Constable Purc testified that after the bag was thrown, he pointed it out to another officer, Constable Landry, and the bag was seized. Constable Landry testified differently, that he found the bag on his own. The bag seized resembles what Constable Purc described, except it is larger (closer to baseball sized, instead of golf ball sized).
20Several issues arose regarding Constable Purc’s evidence. First, his notes. In preparing them, he left blank the identity of the individual he believed he saw throw the bag. Several months later, he had another officer write in the defendant’s name and date of birth in his notes. Constable Purc advised that he did not know who the defendant was at the time of the detention but learned his identity after. He agreed that having someone else add information to his notes was a violation of protocol. He testified that he left the identity blank initially because he is a “perfectionist” and wanted to obtain the identity information afterwards.
21A second concern looms larger. It relates to the officer’s recollection of events. Constable Purc, like many of the officers who testified in this case, acknowledged real uncertainty about the reliability of his memory in this seven-year-old prosecution. He did so verbally – responding multiple times with “my best recollection”, “this is what I recall”, “I am trying to go back seven-and-a-half years here”, “I am having a hard time recalling the exact event” – as well as non-verbally. His facial manner while testifying displayed genuine hesitancy consistent with the verbiage being employed.
22Over three thousand dollars in cash was seized from the defendant incident to his arrest. Additional items were found in a bag in the vehicle, including multiple phones and food colouring, that are consistent with drug trafficking. There was evidence adduced connecting the defendant to these items.
23The Crown’s theory is that the defendant threw the bag containing the drugs, establishing knowledge and control, and that he possessed the currency and items found in the vehicle, characterizing his drug possession as for the purpose of trafficking.
24The defence agrees that the key to this case is whether the Crown can prove the defendant threw the bag and, upon a review of the evidence adduced, it is submitted that there is insufficient evidence to permit the jury to so conclude. As a result, Mr. Newman argues, there is no evidence that a properly instructed jury could reasonably rely on to find the defendant guilty of possession of either fentanyl or cocaine for the purpose of trafficking and, without evidence of drug possession, the possession of proceeds count similarly fails.
Applying the law to the evidence
25I agree with Mr. Nijjar, counsel for the Crown, that this case is largely circumstantial. However, I also agree with Mr. Newman that a component of the evidence is the purported identification of the defendant as the bag thrower. That primary fact, if established, could permit the jury to conclude that the similar bag seized, containing narcotics, was knowingly possessed by the defendant. There is no other basis upon which a properly instructed jury, acting reasonably, could conclude that the bag seized was possessed by the defendant with knowledge of its contents.
26Does the Crown’s case contain evidence capable of establishing the identity of the bag thrower?
27The test on a directed verdict is whether there is “any evidence” upon with a properly instructed jury, acting reasonably, could be satisfied of guilt beyond a reasonable doubt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; USA v Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067.
28The Supreme Court of Canada more recently provided an authoritative and helpful discussion of identification and directed verdicts in R v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694. At paragraph 41, Rothstein J. for the majority stated:
Although the duty to assess the credibility and weight of an eyewitness’ evidence sits with the jury and, in some circumstances, the testimony of one eyewitness will support a conviction, the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt. In other words, a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror; [citations omitted]. Indeed, where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict. [Citations omitted; emphasis added.]
29Again, the foundation of the Crown’s case rests on their theory that Mr. Green threw the bag subsequently seized by the police. While there is other evidence seized from the vehicle and Mr. Green’s person (e.g., the cash), that evidence, the parties agree, only goes to the purpose of possession (i.e., for the purpose of trafficking), not possession itself. In the absence of available evidence capable of establishing that the defendant threw the bag, a finding of guilt on the possession for the purpose counts cannot occur.
30In R. v. Herrera, [2008] O.J. No. 3040 (S.C.J.), Justice McCombs reviewed Arcuri in a certiorari ruling following a preliminary inquiry discharge based on a lack of identification evidence. His Honour wrote the following, which I adopt for present purposes, at para. 28 of his ruling:
“Where the purported identification evidence is unclear, tentative, and contradictory, as it was in the present case, the [judge] must make some determination of what the evidence amounts to – not its strength or weakness, but whether it amounts to evidence of identification at all.”
31The significant passage of time in this case is a major consideration. I do not know why this prosecution took so long to reach trial. I did not seek to know, because the cause of the delay is not relevant to this motion. My present focus is on how a seven-year delay, between an event and a subsequent criminal trial attempting to dissect that event, impacts witness memory. I am concerned about what the Court of Appeal for Ontario in Paddy-Cannon v Canada (AG), 2022 ONCA 110, 160 O.R. (3d) 271, at para. 37, described as “the subtle influences that may have distorted memory over time.” In this case, there is no debate that the passage of time has degraded the memory of Constable Purc and the other Crown witnesses; they told us as much, in clear and unambiguous terms, during their testimony. Their own concerns with their recollection are significant in this circumstantial case containing a form of eye-witness identification evidence.
32The following evidence was presented before the jury to establish that Mr. Green, the defendant, was the person who threw the dog poop bag:
Constable Purc was a new officer to the tactical unit, and he described the scene he attended as “chaotic”. He saw a bag thrown close to him. He focused on the bag, which he testified was the size of a golf ball, as it travelled to the left of him. In his testimony, he agreed that his focus was on the bag and not on whoever threw it.
Constable Purc had no prior contact with Mr. Green. He did not know his name, nor had he seen him before. In the briefing conducted before the takedown, he was described only as “Subject 2”.
Constable Purc wrote no descriptors in his notes about the bag thrower, nor could he provide any in court. He testified that the defendant was arrested a short distance away, and he came to believe that he had been the person who had thrown the bag. It was only during the arrest that Constable Purc first noticed details of the defendant, such as a red tattoo on his face.
Constable Purc acknowledged that he did not write down in his notes any descriptors about the defendant, and that some time later he asked another officer to write the defendant’s name and date of birth in his notebook. He testified that he did so to help him remember who had been arrested. This conduct, acknowledged by Constable Purc to have been a mistake, raises concerns, as it violates police note-taking protocol.
Despite those concerns, I found Constable Purc to be a witness who was sincerely trying to tell the court two things: 1) he believed the defendant threw the bag, and 2) he is struggling to recall many details from this event, which was over seven years ago. As I noted above, Constable Purc provided multiple verbal and non-verbal cues during his testimony, signalling that his recall of this event was fuzzy and imprecise. The terms used by this court in Herrera (“unclear, tentative”) apply comfortably to Constable Purc’s testimony.
I accept that Constable Purc’s belief - that it must have been the defendant who threw the bag - is honestly held. It is clear to me, however, as an experienced justice system participant, that his belief is not based on observation, but instead on his imperfect recollection of how events unfolded. In his mind it must have been the defendant, because he was arrested nearby. His stated belief is actually inferential reasoning on his part, drawing on the proximity of the defendant’s arrest. This belief has hardened over time. I would not characterize Purc’s belief as observation or identification evidence in its own right.
33In summary, this trial contained multiple police witnesses who articulated genuine uncertainty recalling details of a detention/arrest that occurred over seven years ago, Constable Purc chief among them. His testimony is dangerous, in my view, because it presents as simple identification – Constable Purc testified he saw “Jervain Green” throw the bag. It only later becomes clear, following cross-examination, that he did not know who Mr. Green was, had another police officer write Mr. Green’s name and date of birth in his notes, and latched on to Mr. Green as the bag thrower because he was arrested nearby. This is not a personal criticism of Constable Purc, but it is, in my view, an example of what the justice system must guard against. This purported identification has become entrenched over the past seven years, while many other details have been lost to memory.
34In the absence of Constable Purc’s purported identification of the defendant as the bag thrower, there is no evidence in this record capable of establishing that the defendant did, in fact, throw the bag. Three individuals were associated to this vehicle and in close quarters during the chaotic takedown. While they all could have thrown the bag, it would be speculation to infer that any particular individual did, as opposed to the two others. Consequently, there is no evidence upon which a properly instructed jury, acting reasonably, could conclude that the defendant was in possession of the fentanyl and cocaine, nor could that same jury conclude that the defendant’s possession of a significant amount of Canadian currency in his fanny pack – while suspicious – was currency obtained by crime. All three counts fall away, in the circumstances.
Disposition
35The Parks challenge for cause was approved.
36The Defence application to sit outside the dock was dismissed.
37The Crown application to adduce March 19, 2019 evidence was dismissed.
38The Defence motion for directed verdicts was granted.
LATIMER J.
CITATION: R. v. Green, 2026 ONSC 3647
COURT FILE NO.: CR-25-139/ …277/ …276
DATE: 20260623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
S. Nijjar, for the PPSC
- and -
Jervain Green
A. Newman, for the Defence
REASONS FOR DECISION
LATIMER J
Released: June 23, 2026
Footnotes
- I note the Court of Appeal has directed that these applications be brought “well in advance of the trial. They should not become make-work projects for already overburdened trial judges”: Allred, infra, at para. 96.
- No written application has been filed. This is my understanding of the proposed evidence from the Crown’s oral submissions on June 8, 2026.