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