Monthly Archives: November 2014

Telewarrant procedure not to be taken for granted or by default

R. v. Clark 2014 BCSC 1988 – the RCMP executed a telewarrant at a residence rented by the accused, during which they located a marihuana grow operation with 707 marihuana plants and a hydro bypass. The accused was arrested inside the residence.  He was charged with unlawful production of marihuana, possession of marihuana for the purpose of trafficking, and theft under $5000 of hydro from BC Hydro.

The issue on the voir dire was the validity of the search warrant issued for the residence. The informant was an experienced police officer. He decided to apply for a telewarrant to search the premises for suspected theft of electricity from BC Hydro. He testified that in his experience, telewarrant applications were very common. In fact, he said, applying for telewarrants was the standard practice. If he was applying for a warrant during business hours, his practice was to call the Kelowna Court House and ask if a provincial court judge or a Judicial Justice of the Peace (“JJP”) was available. His experience was that typically no one is available and he is routinely directed to use the JJP center in Burnaby to apply for a telewarrant. He stated that what occurred in this case was typical of the telewarrant applications he has done in the past.

During the process, at 2:10 AM, the JJP asked the officer the reason why the application for a search warrant was required at that hour and why the application could not be made during the day. The officer advised the JJP that the courthouse in Kelowna was closed, that in any event there would not be a JJP available at the courthouse, that he was off duty from 4 a.m. until 6 p.m. the following day, and that if a search warrant was issued, he would need time to get a search team together. The JJP suggested that the officer ensure this information was in the ITO before it was faxed. The officer faxed the application, which stated that it was impracticable for him to appear personally because he was “working a nightshift in the early morning hours and the Kelowna Court House is presently closed”. It also stated that, “Due to our local resourcing issues, I will need time to prepare and gather enough human resources to assemble an adequate and safe search team to execute the search warrant.” The JJP approved the warrant.

The Honourable Justice G.P. Weatherill of the BCSC at para 49-50 said there are two relevant requirements for a valid telewarrant:

The first requirement applies to warrants generally and flows from the constitutional right to freedom from unreasonable search and seizure articulated in s. 8 of the Charter. It requires complete judicial independence of the judge or JJP being asked to issue the warrant. This requirement is critical to the balancing of the state’s interests and the individual’s right to privacy inherent in s. 8. As a result, for a warrant authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met in an entirely neutral and impartial manner (Hunter at para. 32). Hunter calls this “acting judicially” and states this is the minimum requirement for a justice presiding over a warrant application (at para. 32).

The second requirement is stipulated in the telewarrant provisions of the Code itself. A telewarrant generally is available when it is “impracticable” to appear personally before a justice and obtain a regular warrant. Specifically, s. 487.1(1) of the Code states that when the peace officer believes it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with ss. 256 or 487, he or she may submit an information on oath by telephone to a justice. In turn, according to s. 487.1(5)(b), the justice must be satisfied that an information submitted by telephone discloses reasonable grounds for dispensing with an information presented personally and in writing. In other words, the officer must have a sufficient belief in the impracticability and that impracticability has to be sufficiently demonstrated to the justice.

The test for impracticability under s. 487.1 means something less than impossible and imports a large measure of practicability and what might be termed as common sense (R. v. Erickson, 2003 BCCA 693; R. v. Grant, 2005 BCSC 1792). The accused argued that the JJP did not “act judicially” in granting the telewarrant because he counseled the officer about what information to include in the application for the telewarrant. The ITO originally stated that it was impracticable to obtain a warrant in person because he was “working the nightshift in the early morning hours and the Kelowna courthouse is presently closed.” The JJP provided guidance to the officer by stating he would need more explanation for why a regular warrant was impracticable. Subsequently, the officer amended the ITO by adding an appendix, para. 26.

Justice Weatherill said even though the evidence did not go so far as to suggest that the JJP told the officer exactly what to add, it still amounted to guidance because without it would infer that the JJP would have found the ITO to have been deficient. By providing this guidance, the justice was not acting judicially. In Justice Weatherill’s judgment, the guidance the JJP provided to the officer was for the purpose of facilitating the acceptance of the telewarrant application and the JJP was in favour of the telewarrant being approved even before he had seen it.

Justice Weatherill said exhibiting a preference or providing guidance, no matter how slight, cannot be said to constitute a review in an “entirely neutral and impartial manner” as per Hunter, so paragraph 26 of the Appendix to the ITO must be excised. With paragraph 26 excised, the only reasons left in the ITO justifying the impracticability of obtaining a warrant in person were “working the nightshift in the early morning hours and the Kelowna courthouse is presently closed” and more is required from an ITO’s affiant than a bald and boiler plate statement such as that.

Of greater concern to Justice Weatherill was the officer’s evidence that applications for telewarrants rather than conventional warrants have now become standard practice of the RCMP. In essence, his evidence was that telewarrants have now become the default and standard method of obtaining search warrants. If that is the case, such practice is misguided and, short of an amendment to the Code, should not be condoned said the Justice. The telewarrant provisions of the Code are not the default method of obtaining search warrants, but are only to be engaged when “it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section …487”:

“In my view, s. 487 continues to be the primary and preferred manner for the police to apply for search warrants and for good reason. Search warrants authorize the state to intrude on the privacy and sanctity of a person’s privacy rights guaranteed by the Charter and ought to be allowed in appropriate circumstances only if the provisions of s. 487 have been met to the satisfaction of a justice.

The first step a police officer should take in seeking a search warrant is to make a reasonable attempt to obtain the warrant under s. 487. If after a reasonable attempt, objectively measured, obtaining a warrant under s. 487 proves impracticable, the officer has the ability to apply for a telewarrant under s. 487.1. To go directly to a telewarrant application by default without any effort to obtain a s. 487 warrant is a short-cut that is not permitted by the Code as it is presently framed.”

Following the Grant analysis, Justice Weatherill ordered the evidence obtained by the RCMP as a result of the Warrant be excluded under s. 24(2) of the Charter.

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Stay of drinking and driving charge granted where police videotaped accused’s toilet use

R. v. Joseph 2014 ONCJ 559 – The Honourable Justice Melvyn Green held that the s. 253(1)(a) of the Criminal Code charge was not made out based on the evidence, but the main reason for my post on this case is the second charge on which the defendant was arraigned, that of driving with a legally excessive BAC, which depended on the admissibility of the evidence respecting the defendant’s Breath readings.

The defendant’s s. 8 privacy rights as a result of the videotaping of his use of the toilet while in a holding cell at the OPP detachment was the issue. This invasion of the defendant’s privacy interests occurred before his BAC readings were obtained, thus establishing a temporal connection between the breach and the impugned evidence.

The department in question has three holding cells; two with vertical metal bars and a third with a solid metal door. Signage across from each of the two barred cells advises that the area is under video surveillance. The third cell is in a separate area and it is equipped with an overhead CCTV camera in a dome fitted to the ceiling. There is no signage cautioning detainees about video surveillance in or around this third cell. The defendant was placed in this third cell. The cell was empty, as were the two other cells. There is a constant live feed from the cell cameras to a large video monitor in the “constables’ room” at the detachment. Six to eight officers, both male and female, occupy this room at any given time, as do, on occasion, Ministry of Transport, emergency and towing personnel. The video panel is also visible to anyone passing the room.

There is a washroom between the booking room and the holding cell with the solid steel door and that washroom is not equipped with video surveillance. One of the arresting officers testified that before he lodged the defendant in a cell, he may have asked to use a toilet, but the defendant was placed in the cell with the steel door (which contains a toilet) rather than escorting him to the adjacent washroom. The officer said that no police policy prevented him from permitting the defendant to use the non-monitored washroom. At no time did the officer inform the defendant of the CCTV camera in his cell.

The frame of vision of the overhead camera in the defendant’s cell included an unobstructed view of the toilet. The video captured the defendant pulling down his pants and sitting on the toilet for about two minutes. An image, if somewhat blurry, of the defendant’s penis was visible for about six seconds. It cannot be said with certainty what bodily function, if any, the defendant performed. It does not appear that any toilet paper was used. Justice Green said:

“The breach of the defendant’s privacy interests was, in my view both unnecessary and avoidable. The OPP’s installation of video-monitoring of cells in the force’s detachments was undoubtedly well-intended. There are situations where concerns respecting prisoner health and safety, institutional security and the preservation of evidence justify the constant video surveillance of detainees. It is unclear, however, why every prisoner’s toilet functions and genitalia need be closely scrutinized and digitally preserved. Evidentiary concerns can generally be tackled by way of searches conducted before being lodged in a cell including, as is hardly uncommon, non-videotaped strip-searches by officers of the same gender as the detainee. Modesty screens (such, for example, as that described in R. v. Robb, 2014 ONCJ 514, at para. 7), hospital gowns or the provision of other coverings could readily mitigate the predictable privacy claims arising from the routine taping of prisoners’ use of a toilet. Nor, as with search-level determinations, does every prisoner present such degree of concern or jeopardy as to warrant constant video surveillance. (The defendant, by way of immediate example, was documented as negative for any health, safety or security risks and was polite and co-operative throughout the investigation.)”

Justice Green said it is at least arguable that the video-taping of prisoners’ use of a toilet is even more invasive than strip searches in so far as the privacy violation is exposed to an unknown number of others and indefinitely preserved. Especially, said Justice Green, having been alerted to judicial expressions of concern respecting constitutional improprieties at least a year before the defendant’s arrest, it is almost incomprehensible that the force awaited appellate authority before recalibrating the balance between safety and privacy. These systematic or institutional considerations clearly argue against admission of the defendant’s BAC results.

Justice Green said the video recording of any prisoner’s toilet functions is a violation of his or her personal dignity and bodily integrity. The defendant had never previously been in police custody. He assumed his cell’s solid steel door afforded him a measure of privacy. No one suggested otherwise. He was left feeling angry, disgusted and personally violated when he learned, only through disclosure, that his use of a toilet and images of his penis had been displayed indiscriminately to police and possibly other personnel in the detachment’s common room and permanently preserved on videotape.

The result: Justice Green excluded the evidence of the Breath tests. As the Crown’s case respecting driving with an excessive BAC was dependent on this evidence, an acquittal was entered.


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The “Reduce Impaired Driving Everywhere” (R.I.D.E.) Program and Police Powers

R. v. Lippett [2014] O.J. No. 5185 – an Ontario Court of Justice, presided over by the Honourable Justice Robert W. Beninger, has examined police powers at a RIDE program, and specifically whether they can open the car door.

The defendant, alone in his car, entered a RIDE stop, which had been set up by police on an afternoon in February. There was nothing notable about the defendant’s driving before he was stopped. An officer approached the defendant’s vehicle and asked him to roll down his window. The window was rolled down two or three inches, so the officer asked him to roll it down further. The defendant then rolled the window down two thirds of the way. It was not established on the evidence whether the window was a power window or opened manually. The officer noted a strange odour in the defendant’s vehicle, which he could not identify. He identified the obvious odour of an air freshener. He noted an air freshener hanging from the rear-view mirror of the vehicle. He spoke to the defendant, and he observed the defendant’s eyes to be shiny or glassy with the white portion of the eye very pink. The officer did not ask the defendant if he wore contact lenses or had allergies (the defendant’s sworn affidavit said he was wearing contact lenses when he was stopped by police). 

The officer observed the defendant’s speech to be what he termed as, “Gummy and laboured.” The officer asked the defendant if he had consumed alcohol, and the defendant denied it. The officer asked the defendant if he had ingested marihuana and the defendant denied that. On request, the defendant produced a valid Ontario Driver’s License without difficulty. The officer walked to the rear of the vehicle to verify the license plate. The evidence was not established as to how long the officer was at the back of the vehicle, but he said it was no more than ten seconds. When the officer returned to the driver’s side window, the window was closed. Upon leaving the driver’s side of the vehicle, the officer had not directed the defendant to keep his driver’s window rolled down, nor did he direct the defendant to either turn off his vehicle or put it in park. The officer had not told the defendant how long he was going to be gone when he walked away.

The officer asked the defendant to roll the window down. The defendant appeared to the officer to be trying to open the window, but seemed to be having difficulty opening the window. It was not established on the evidence as to how long the officer waited for the defendant to open the window. The officer said that, in his view the defendant wanted to appear as if he was rolling down the window, but he wasn’t rolling down the window. The officer said that in his view he gave the defendant “ample” time to open the window. It was unclear to the officer whether the defendant was unable to open the window or was deliberately not complying with his direction. In the end, the officer did not wait for the defendant to open the window. The officer opened the door of the vehicle, and leaned into the defendant’s car for the purpose of furthering his investigation. The officer did not ask for permission to open the door, and he was not invited by the defendant to open the door.

As it was winter, it was cold outside and there was snow on the ground. The officer leaned into the car through the open door, and he could smell the obvious odour of marihuana in the vehicle. The officer formed a belief that the defendant had been smoking marihuana and was in possession of marihuana. There was no smoke in the car, nor any physical signs of marihuana in the car. The officer removed the defendant from the car and arrested him for possession of marihuana (this was about 3 minutes after the initial stop). The defendant told the officer that he had weed in his shirt pocket, and the officer found two rolled joints in the defendant’s shirt pocket. After he removed the defendant from the vehicle, the officer made observations that the defendant was unsteady on his feet, so he arrested the defendant for driving while he was impaired by a drug. After his right to counsel, the officer read the defendant a D.R.E demand and transported the defendant to the police detachment, leaving some 10 minutes after the initial stop.  Once back at the police station, the defendant initially complied with the D.R.E testing, but about 30 minutes later said he would no longer cooperate with the testing. Subsequently, he was charged with refusal under s. 254(5) of the Criminal Code.

Defence argued that there was a section 8 Charter breach when the defendant was subject to an unlawful search and seizure; there was a section 9 Charter breach when the defendant was arrested for a possession of marihuana without the police having reasonable grounds for an arrest, and without the police being in compliance with s. 495(1)(b) of the Criminal Code; and that all the evidence relied upon by the crown to prove the charges against the defendant should be excluded pursuant to s. 24(2) of the Charter.

Justice Beninger first addressed police powers at a R.I.D.E. stop. The scope of police power was described by Justice Doherty in R. v. Smith, [1996] O.J. No. 372, in the Court of Appeal as, in order to be reasonable having to be:

“Performed at the site of the detention with dispatch, with no danger to the safety of the detainee, and with minimal inconvenience to the detainee.”

The crown argument was that the action of opening the car door falls within the parameters of the police powers which are available at the roadside. As stated in R. v. Orbanski, [2005] S.C.J. No. 37 [SCC] at paragraph 45 and following:

“One can think of many examples in which observation of the driver through the open car window will not be sufficient to enable the officer to draw the line between those drivers with a permissible amount of alcohol in their body, and those who have reached the impermissible level.”

The crown cited a number of cases which endorse the power of the police to open the car door as a lawful investigative step, but Justice Beninger found that none of those cases support the proposition that police have the authority at a standard R.I.D.E stop to open the door of a vehicle without the permission of the driver. The crown’s argument, as Justice Beninger understood it, is that he should find that the police have the authority to open car doors at a R.I.D.E. stop pursuant to their ancillary powers. To agree with the crown on that point, the Justice would be endorsing the authority of police to open car doors at R.I.D.E. stops as part of their standard investigative procedure.

Defence argued, as stated in R. v. Ladouceur, [1990] 1 S.C.R. 1257, that R.I.D.E. stops under the Highway Traffic Act are a Section 9 Charter Violation but they are saved by Section 1 of the Charter. The Section 9 violation is a reasonable limit as, to quote from paragraph 59:

“These stops are and must be of relatively short duration, requiring the production of only a few documents. There is a minimal inconvenience caused to the driver, there is seldom a need to bring the driver to the police station, nor is there usually a need for intrusive searches of the driver or the vehicle. If they were intrusive they would probably be subject to challenge as infringing Section 8 of the Charter. The routine check impairs the Section 9 guarantee against arbitrary detention as little as possible.”

The defence further cited R. v. Mellenthin [1992] S.C.J. No. 100, as authority for the scope of R.I.D.E. investigations. In paragraph 15 the Court stated:

“Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the R.I.D.E. program is thus to check for sobriety, licenses, ownership, insurance, and the mechanical fitness of cars. The police use of check stops should not be extended beyond those aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.”

In this case, Justice Beninger found that the action of the police officer in opening the car door, and leaning into the vehicle was an unreasonable search. He found that the police actions at the R.I.D.E. stop were a Section 8 Charter violation.

With regards to defence’s application on the Section 9 Charter breach when the defendant was arrested for a possession of marihuana, Justice Beninger cited R. v. Polashek [1999] O.J. No. 968 [OCA], as the facts on that case are comparable to the facts in this case. As Justice Rosenberg noted in R. v. Polashek, at paragraph 13:

“The sense of smell is highly subjective, and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of an officer.”

Justice Beninger said the officer in question is an experienced police officer with many prior arrests involving marihuana, but he was not convinced that his level of expertise was such that the Justice could rely upon his opinion that there was still marihuana present in the defendant’s vehicle (the Justice noted that the officer did not know how long the odour of marihuana would linger after being smoked). In addition to odour, the officer also cited his physical observations of the defendant’s speech and eyes. Justice Beninger said the officer had no prior experience with the defendant and did not inquire about other explanations for his observations as to speech, and the appearance of the defendant’s eyes. Finally, on his evidence the officer did not believe that there were more than 30 grams of marihuana in the vehicle. The offence in question was a summary conviction offence. The defence cited R. v. Johnson, [2010] O.J. No. 4793 [SCJ], in paragraph 55 of that case:

“Possession of a controlled substance where the quantity is under 30 grams is a summary conviction offence and in such circumstances the power to arrest is limited to the situation where a peace officer finds a person presently committing a criminal offence as provided for in s. 495(1)(b).”

As the officer did not find the defendant “committing an offence,” Justice Beninger ruled the arrest was not authorized in law under s. 495, so there was a breach of the defendant’s Section 9 Charter Rights.

As for the 24(2) Charter analysis, Justice Beninger said there was both an unreasonable search and seizure, and an unlawful arrest. The arrest was facilitated by the unreasonable search of the vehicle, so he found that the Charter infringing state conduct at the R.I.D.E. stop was serious. He also found that the circumstances in a drug investigation are different than in an investigation relating to impairment by alcohol. In a drug impairment investigation, a person in detention is subject to D.R.E testing, which is significantly more intrusive than the process of providing breath samples, said the Justice.

The result: Justice Beninger ruled that the D.R.E. demand made by police was not a lawful demand and dismissed the charges.

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The Nova Scotia Court of Appeal has overturned the verdict of a jury, declaring it “unreasonable”

R. v. Murphy 2014 NSCA 91 – a jury found the accused guilty of possession of drugs for the purpose of trafficking. He appealed, alleging that the verdicts were unreasonable or not supported by the evidence. The appeal was allowed, the verdicts quashed, and acquittals entered.

In September of 2008, the police executed search warrants for three locations: a storage locker believed to be rented by the accused; a home in one location, and one for an apartment in another location. The police arrested the accused when they searched the home. No drugs or any relevant evidence was found in the home or the storage locker.  In the apartment, police found $290.00 in cash in a kitchen cupboard; empty Ziploc bags containing an unknown white residue; score sheets with names and dollar amounts; a thermos under the kitchen cupboards containing two bags of cocaine, each weighing approximately 29 grams; 26 hydromorphone pills (in an unmarked pill bottle) were found in the master bedroom dresser drawer; a digital scale; 14 grams of cocaine in the nightstand beside the bed in the master bedroom, along with a white mixing bowl; $1,315.00 in cash in a safe in the master bedroom; .4 grams of cocaine in a man’s jacket in the hall closet.

The Crown called six witnesses. One was a police officer, qualified to give expert opinion evidence. Four police officers testified about their involvement in the investigation. The sole civilian witness was the property manager of the apartment building. When police search the apartment, the door to the apartment was ajar. They entered. An officer described finding “an older gentleman” asleep on the chesterfield in the living room. An officer determined his identity and released him without charge. Defence called one witness; the sister of the accused.

The property manager identified the accused as the tenant for the apartment from 2006 to the early fall of 2008. She asserted that he lived there by himself, except he did have a girlfriend who stayed with him for couple of weeks in 2006, until she got an apartment of her own in the building. She described how the accused came to her office in 2006 with another male. The lease was in the other male’s name, with the accused listed as an occupant. The rent was paid by automatic withdrawal from the other male’s chequing account.  Twice, the payment ‘bounced’. Both times, the accused paid the property manager in cash to replace the dishonoured payment from the other male’s bank account. The first time was in July of 2006 ($525.00); the second was in May of 2008 ($525.00 plus $25.00 for the NSF fee). The receipt for this latter cash payment was introduced as an exhibit. The property manager described that she had occasion to speak with the accused when she was cleaning the halls, and that a few times “he got locked out and he came over and I had to go over and open his apartment to let him in”. She said she saw him coming and going. During the cross-examination, the property manager said that she did not live in the same building, nor socialize with the accused; she simply saw the accused as she was going about her duties as manager or if there was a problem. In addition, she confirmed that the first time the police contacted her about the events of 2006 to 2008 was in November of 2012.

The defence’s sole witness, the sister of the accused, testified how she had lived at the home (not the apartment) until she was 20 years of age, and then moved away for 26 years. There was some confusion about dates. She said she returned in 2007 when her mother underwent surgery, but came home permanently in July of 2009, and was present when the police conducted the search of the home and arrested her brother. In any event, she testified that she was familiar with the apartment in question as being the residence of the other male, a friend of her brother. To her knowledge, the accused had never resided there. She did visit the apartment in 2006 with the accused and their mother. She said they went to the apartment as that was where the accused kept his two cats, and the other male let them in.

The Crown asked the jury to conclude that the accused lived in the apartment and therefore had control over its contents including the drugs, which they could infer he had knowledge of, in light of their location in the apartment and value. Defence urged the jury to find a reasonable doubt that he was in possession of the drugs. Counsel was highly critical of the quality of the police investigation: the long delay in contacting the property manager; there had been no police surveillance connecting the accused to the apartment; nor fingerprints, documents, or anything else that connected the accused to the apartment, let alone the drugs. In essence, it was the absence of evidence that mandated a reasonable doubt. The jury convicted Murphy of possessing those drugs for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The Honourable Justice Cindy Bourgeois (as she then was) was the trial judge. Mr. Murphy was at that time fifty years of age, with no prior conviction. Justice Bourgeois sentenced Mr. Murphy to 36 months’ incarceration.

I won’t get into the legal framework for the appeal as that is a jurisdictional concern for the courts to be concerned with, and not us as officers. The NSCA said the case against the accused was entirely circumstantial. No one saw him exercise any acts of control over the drugs, nor was he in actual possession of them. However, criminal liability for possession of drugs can attach if an accused is proven to have constructive or joint possession of them.  Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 directs that possession means possession within the meaning of subsection 4(3) of the Criminal Code. Section 4(3) of the Code creates three ways a person can be found to be in possession: personal possession; constructive possession; and joint possession. The formal language used is as follows:

  • 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 of 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 possession of each and all of them.

This was a case of constructive possession, according to the NSCA. That is, the Crown asserted that the accused knowingly had the drugs at the apartment for his use or benefit. To state the obvious: there was no direct evidence that the accused knew the drugs were in that apartment. To convict the accused, the jury must have rejected the evidence of the accused’s sister and accepted the evidence of the property manager, that the accused was living in the apartment by himself. From that fact, and that fact alone, the jury must then have inferred that he knew of the presence of the drugs found in the master bedroom and under the kitchen cupboard and had control over them; from the decision, the jury must of done so.

The question, of course, was the evidence of the property manager as to the occupancy of the accused sufficient to permit the jury, acting judicially, to find the charges proven beyond a reasonable doubt? Put another way, would a trier of fact, without more, be entitled to infer that the accused knew of the presence of the drugs found in the master bedroom and under the kitchen cupboard in a thermos and had control over them? In this case, the Crown commented that a trial judge would not likely have convicted.

The Honourable Duncan R. Beveridge, speaking for an unanimous NSCA, said if the accused were the sole occupant, why is it that the Crown did not produce a shred of evidence that the accused’s belongings were present in that apartment, such as documents, bills, clothing, personal effects–something. The only reference to personal effects was to a set of car keys and a jacket. The jacket was in the hall closet (.4 grams of cocaine was seized from one of its pockets). The police did not seize the jacket. There were no photographs introduced of the jacket or of the closet where it was found. There was no evidence that it was a man’s or woman’s jacket, or whether there were other clothes present. The Crown led no evidence about where the car keys were found, just that an officer seized them. If the accused were the sole occupant, surely the car keys were his, and the Crown could have led evidence tending to establish this fact, said Justice Beveridge. The accused was not present, so it is a matter of common sense that he would have had his car keys with him, if he owned a car. Someone else was present and asleep at the time. There was no admissible evidence as to explain why he was present, and what he was doing there. There was evidence that the police searched the accused (and the premises where he was located) when he was arrested. If he were the sole occupant of the apartment, why did the police not find a set of keys to that apartment?

Justice Beveridge said there was lacking any of the usual evidence that demonstrated regular occupancy or connection to the drugs. In light of all of those circumstances, Justice Beveridge concluded that with all due respect, the jury reached its verdict in a non-judicial manner and the only basis upon which the jury could find knowledge and control was to draw an inference, which in this case was of insufficient weight from which to infer knowledge and control. The evidence led by the Crown in this case simply did not permit a reasonable trier of fact to draw an inference that the accused had the requisite knowledge and control over the contents of the apartment in September of 2008.

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