Click here for more. It is submitted that this case is wrongly decided and allows for a presumptive possession of narcotics that is presented in argument as constructive possession when the Judge confirmed all the evidence was only circumstantial. Either way, constructive or presumptive possession is not proof to satisfy the requirement of proof beyond a reasonable doubt for s.11 of the Charter of Rights and Freedoms . Any constructive or presumptive possession is set aside easily by a rebuttal of the presumption. The presumption is rebutted by confirming quietly that there is is no evidence to satisfy the elements of the offence and only tangible evidence is necessary and required for the satisfaction of the Crown onus to achieve a conviction if satisfied. Presumption is not evidence of the actus reus whole the presumption may achieve an arrest and a warrant under statute but not evidence for conviction. See. R. V. Oakes 1986 SCC that demystifies the confusion and confirms the well settled law. R v Smith, 2018 SKQB 347
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R v Smith, 2018 SKQB 347 (CanLII)
| Date: | 2018-12-14 |
| File number: | CRM 5 of 2017 |
| Citation: | R v Smith, 2018 SKQB 347 (CanLII), <http://canlii.ca/t/hwrhj>, retrieved on 2019-05-14 |
- Cited by 0 documents
QUEEN’S BENCH FORSASKATCHEWAN
Citation: 2018 SKQB 347
Date: 2018 12 14
Docket: CRM 5 of 2017
Judicial Centre: Saskatoon
BETWEEN:
HER MAJESTY THE QUEEN
‑ and –
KEYON SMITH
Counsel:
Lua E. Gibb for the Crown
Lisa J. Watson for the accused
___________________________________________________________________________
JUDGMENT DANYLIUK J.
December 14, 2018
___________________________________________________________________________
I. Introduction
THAT on or about the 2nd day of June, A.D. 2016 at or near Saskatoon, Saskatchewan, did:
1. Unlawfully have in his possession a controlled substance to wit: cocaine, forthe purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] The accused admitted numerous facts so as to limit the trial issue to this: did he have knowledge and possession of the drugs?
[3] For the reasons set out below, I have determined that the Crown has proven its case beyond a reasonable doubt. As a result, I find the accused guilty as charged.
II. Facts
[4] Pursuant to s. 655 of the Criminal Code, RSC 1985, c C-46, an agreed statement offacts was entered into and was an exhibit this trial. It read as follows:
1. This agreed statement of facts will be entered as Exhibit P1 in these proceedings;
2. All events described herein unless otherwise specified, took place in Saskatoon, Saskatchewan on or between May 31, 2016 and June 2, 2016.
3. Keyon Smith, date of birth December 12, 1996 (the “Accused”), is the person charged in the Indictment and is beforethe court. The identity of the Accused is admitted.
4. Any reference to “cocaine” herein refers to a controlled substance under Schedule I of the Controlled Drugs and Substances Act.
5. For the purpose of the trial, thecontinuity of any items seized by theSaskatoon Police or the Saskatoon RCMP is admitted.
6. Police conducted surveillance at 139 St. Lawrence Ct between May 31, 2016 and June 2, 2016. The target of thesurveillance used the street name “Rex” and was observed on several occasions to be driving a Black Chevrolet Equinox bearing Saskatchewan license plate 327KCQ (the “Equinox”). During the investigation, it was determined that the target suite was #402. The individual observed on surveillance were described by police as either “Rex” or “black male(s)”.
7. Keyon Smith is not “Rex”.
8. Certain observations from surveillance conducted on June 2, 2016 will be admitted at trial without the need to have the officer who made the observation confirm by wayof viva voce evidence.
9. Sgt. Robin Wintermute of theSaskatoon Police Service made thefollowing observations on June 2, 2016 in Saskatoon, Sk during the surveillance:
a. At 17:39 hours, the white Volkswagen Golf with Saskatchewan License plate 702KCQ was observed stopped at Thayer Avenue in front of Budget Rentals. A black male with a slim build and muscle shirt came out of the business and got into the
83] The Crown argued that there was sufficient evidence of knowledge and control on the part of Mr. Smith so as to constitute theelement of possession and satisfy its onus ofproving possession. The Crown acknowledges that to prove this by use of circumstantial evidence, the inference that the accused possessed the cocaine for the purpose oftrafficking is the only inference that can be drawn from the evidence.
[84] In this regard the Crown relies on R v Pham, 2006 SCC 26 (CanLII), [2006] 1 SCR 940, wherein the Supreme Court expressly adopted the reasoning of the Ontario Court of Appeal ((2005), 2005 CanLII 44671 (ON CA), 203 CCC (3d) 326 (Ont CA)). My further references to Pham are all to the Ontario Court of Appeal decision, which has the imprimatur of the Supreme Court.
[14] Section 4(3) of the Code creates three types of possession:
(i) personal possession as outlined in s. 4(3)(a);
(iii) joint possession as defined in s. 4(3)(b).
[15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), 7 C.C.C. (2d) 285,[1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).
[16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of theperson deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams(1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.).
[17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling,[1988] O.J. No. 107 (H.C.J.), at p. 6 (QL):
There is no direct evidence of theapplicant's knowledge of the presence ofnarcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination,the finding of narcotics in plain view inthe common areas of the residence, thepresence of a scale in a bedroom apparently occupied by the applicant, andthe applicant's apparent occupation of thepremises may serve to found an inferenceof the requisite knowledge.
The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge.
[18] The onus is on the Crown to prove beyond a reasonable doubt, all of theessential elements of the offence ofpossession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, at p. 448 C.C.C., Martin J.A. noted thatthe court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the controlof an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug".
[23] In the instant case, the Crown did not argue that the appellant had personal possession of the cocaine. Rather, theCrown urged the trial judge to find constructive possession or joint possession.
[24] As is evident from my summary ofthe law, neither constructive possession nor joint possession requires proof ofmanual handling. To establish constructive possession, it was incumbent upon theCrown to prove beyond a reasonable doubt that the appellant knew of the presenceof the cocaine and that he had some measure of control over its location. To establish joint possession, the Crown was required to show that someone other thanthe appellant had possession of thecocaine with his knowledge and consent and that he had some measure of control over it.
Click here for more. It is submitted that this case is wrongly decided and allows for a presumptive possession of narcotics that is presented in argument as constructive possession when the Judge confirmed all the evidence was only circumstantial. Either way, constructive or presumptive possession is not proof to satisfy the requirement of proof beyond a reasonable doubt for s.11 of the Charter of Rights and Freedoms . Any constructive or presumptive possession is set aside easily by a rebuttal of the presumption. The presumption is rebutted by confirming quietly that there is is no evidence to satisfy the elements of the offence and only tangible evidence is necessary and required for the satisfaction of the Crown onus to achieve a conviction if satisfied. Presumption is not evidence of the actus reus whole the presumption may achieve an arrest and a warrant under statute but not evidence for conviction. See. R. V. Oakes 1986 SCC that demystifies the confusion and confirms the well settled law. R v Smith, 2018 SKQB 347
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