This week’s top three summaries: R v Mahamud, 2019 SKQB 115, R v Herman, 2019 SKPC 21, and R v Knight, 2019 ONSC 2443.
R. v. Mahamud (SKQB)
[May 5/19] Charter s.10(b) - Delay in Access to Counsel, s.8 Fearon search of smart phone - 2019 SKQB 115 [M.R. McCreary J.]
AUTHOR’S NOTE: This case provides a good overview of the case law on delay in access to counsel and search incident to arrest of a cell phone. A casual neglect of these rights by the police in the case led to an exclusion of significant evidence for the Crown. To accomplish this, the judge drew a temporal connection to the evidence in respect of the 10(b) violation.
"In March and April of 2017, the Combined Forces Special Enforcement Unit of the Regina Police Service [CFSEU] received information that a black male named "Al" was travelling from Edmonton, Alberta, transporting cocaine to sell in Regina. Over a period of two months, the CFSEU investigated this information. This investigation led the CFSEU to believe that Aydarus Mahamud was the individual travelling from Edmonton to Regina to traffic in cocaine. On the evening of May 2, 2017, the CFSEU set up surveillance outside of Regina and followed Mr. Mahamud as he drove into the city." (Para 7)
"Upon entering Regina, Mr. Mahamud parked his vehicle outside of an apartment complex on 7th Avenue North. He was immediately arrested. The arrest took place at approximately 12:30 AM on May 3, 2017." (Para 8)
"Cst. Aaron Strubie arrived at the scene within 10 minutes of the arrest to transfer Mr. Mahamud to police station cells. I do not have evidence of exactly when Mr. Mahamud was transferred to Cst. Strubie's custody. However, when Cst. Strubie arrived, Cst. Anderson expressly instructed him not to allow Mr. Mahamud to call his lawyer, indicating that the lawyer call would be addressed "later"." (Para 10)
"Cst. Anderson testified that he made a conscious decision to delay Mr. Mahamud's access to counsel at the point of his arrest, "based on the circumstances of the investigation". Cst. Anderson thought the apartment outside of which Mr. Mahamud was arrested [the apartment] might be a "stash location" for drugs or money, or might be occupied by other people involved in drug trafficking. He therefore decided to delay Mr. Mahamud's call to his lawyer until some point later for reasons of "officer safety" and to protect against the "destruction of evidence"." (Para 11)
"The police searched Mr. Mahamud's person incidental to the arrest. They found two cell phones and one Blackberry. A set of keys was also found that unlocked the security door of the apartment complex and an apartment inside." (Para 12)
"The Blackberry was unlocked and active when it was seized. Cst. Nora Madill kept the Blackberry unlocked for a time by manipulating it. She took 11 photographs of text messages which appeared on the device. She did not keep a record of what or how many applications she searched." (Para 13)
Search of the vehicle incident to arrest revealed "bandana, mask and latex gloves, two pairs of gloves; red and blue bandanas, rental car agreement, 252 grams of cocaine, 5 grams of marijuana, two small baggies of cocaine, a Smith and Wesson 9mm handgun, a detachable cartridge magazine and 10 bullets." (Para 16)
Charter s.10(b) - Delay in Providing Access
"Section 10(b) requires the police to advise a detained person of his or her right to speak with counsel without delay. If the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel at once: R v Suberu, 2009 SCC 33 (CanLII) at paras 38 and 42,  2 SCR 460 [Suberu]; R v Bartle, 1994 CanLII 64 (SCC),  3 SCR 173 at 191-192." (Para 21)
"In R v Rover, 2018 ONCA 745 (CanLII), 366 CCC (3d) 103 [Rover], Justice Doherty, writing for the court, summarized the law that applies to an apprehended person’s right to access counsel and any delay in facilitating that right. He explained when delaying that right may be justified (at paras. 26-28):
The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence...
[Adopting R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.] "A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate." (Para 23)
"Recently in R v Todd, 2019 SKCA 36 (CanLII), the Saskatchewan Court of Appeal stressed that concrete evidence is required to justify suspension of the right of counsel. Justice Schwann noted (at para. 79):
 Officer or public safety concerns can give rise to some measure of delay; however, these concerns must be more than theoretical or general in nature in order to justify suspension of the right to counsel. That is to say, there must be some concrete evidence put forth beyond the expression of an abstract concern. Whether there is a legitimate basis to suspend the right to counsel entails a fact-sensitive inquiry. (Para 24)
Application of the Law
"In the instant case, the Crown concedes there was a breach of Mr. Mahamud's right to counsel. The Crown allows that the breach began at 1:30 AM, once the apartment was secured and concerns about officer safety and the destruction of evidence were addressed." (Para 26)
"However, I find that the breach occurred upon arrest, when Cst. Anderson instructed Cst. Strubie not to allow Mr. Mahamud to call his lawyer. At no time following the arrest did the circumstances reasonably support that it was necessary to deny the right to counsel in order to safeguard evidence or officer safety. As a result, the breach occurred with the initial denial of the right, sometime around 12:40 AM." (Para 27)
"Nevertheless, the specific evidence of this case does not support that the destruction or loss of evidence was imminent, and/or that there was an imminent threat to officer safety. While the police did not secure a search warrant for the apartment before Mr. Mahamud's arrest, that fact, by itself, does not mean that risk was imminent. In fact, the evidence demonstrates that the circumstances of Mr. Mahamud's arrest were relatively low-risk. Mr. Mahamud was cooperative and friendly upon his arrest. He was searched and no firearms were discovered on his person. Three mobile devices were seized from him. He then helped the police try to catch his dog, who had run from the vehicle. He continued to be cooperative when he was transferred to the police station. While Mr. Mahamud was arrested outside an apartment building, there was no evidence that police told him that they might search an apartment inside the building." (Para 29)
"To justify a delay in facilitating access to counsel, there must be objective evidence from which one can conclude that an immediate solicitor-client communication could pose a risk to officer safety or could result in the destruction of evidence. In other words, the evidence must establish a possible nexus between the risk identified and the solicitor-client communication requested by the detained person." (Para 30)
"Cst. Anderson’s reasoning for delaying Mr. Mahamud’s access to counsel was based on the general possibility that allowing an arrested person to speak to his lawyer could put officers or evidence at risk. As noted by Justice Doherty in Rover, at para 27:
27 … concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. … (Para 32)
"the evidence was that police place the call directly to the lawyer to prevent third-party interference. In addition, because there was no evidence that the police told Mr. Mahamud that they intended to search the apartment, it is implausible that Mr. Mahamud's communications with his lawyer would result in third parties in the apartment being alerted to the impending search." (Para 33)
"Even if I accept that at the time of Mr. Mahamud's arrest police did have objectively verifiable grounds to believe that the destruction or loss of evidence was imminent, and/or there was an imminent threat to safety which justified delaying the right to counsel, then by 1:30 AM that risk was addressed. By 1:30 AM, when the police had secured the apartment and the vehicle had been towed, there were no longer any grounds to continue to delay Mr. Mahamud's communication with counsel. From that point, at least, a breach of Mr. Mahamud's s. 10(b) Charter rights occurred." (Para 36)
Section 8 - Fearon search of Smartphone
"In Fearon, the Supreme Court of Canada considered whether the search of a cell phone incidental to arrest breached s. 8 of the Charter. The majority of the court concluded that police officers are not justified in searching a cell phone or similar device incidental to every arrest. Rather, a search of a cell phone will comply with s. 8 of the Charter where: (1) the arrest is lawful; (2) the search is truly incidental to the arrest in that the police have a valid law enforcement purpose; (3) the nature and extent of the search are tailored to the purpose of the search; and, (4) the police take detailed notes of what they have examined on the device and how the device was searched." (Para 38)
At para 82 the SCC in Fearon indicated:
"In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest." (Para 39)
Application of the Law
"Cst. Madill was not able to say with any certainty how many applications were on the Blackberry, which applications she searched, or the method she employed to search. While she took photographs of some messages on the Blackberry, she could not remember with specificity what messaging applications were on the device. Her notes state that the Blackberry was seized from Mr. Mahamud's effects, but she testified that the Blackberry was handed to her by another officer, which she acknowledged is inconsistent." (Para 41)
"In short, there was no attempt made by Cst. Madill to keep an accurate and detailed record of the methodology of her search. The result is that there is no reliable record for after the fact judicial review. It follows that the manner in which the search of the Blackberry was performed breached s. 8 of the Charter." (Para 42)
"In Rover, the court cited its own decision in R v Pino, 2016 ONCA 389 (CanLII), 130 OR (3d) 561 [Pino] for the proposition that a close temporal connection, rather than a causal connection between the discovery of evidence and the s. 10(b) breach, is sufficient to engage s. 24(2)." (Para 47)
The Court cited: "R. v. Wittwer, 2008 SCC 33,  2 S.C.R. 235, at para. 21, Fish J: 'The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three'"
"I find that the evidence seized from Mr. Mahamud's vehicle was "obtained in a manner" that infringed upon Mr. Mahamud's rights pursuant to s. 10(b) of the Charter." (Para 50)
"The evidence seized from the vehicle and the breach of Mr. Mahamud's right to counsel were part of the same transaction. Mr. Mahamud was arrested, police denied his right to consult with counsel immediately, and incriminating evidence was discovered when the vehicle was searched incidental to Mr. Mahamud's arrest. The common link between the evidence and the breach is Mr. Mahamud's arrest." (Para 51)
"Regardless, the connection between the evidence seized, either before or after 1:30 AM, and the breach of s. 10(b) of the Charter is substantial. There is both a temporal and contextual connection. The connection is temporal because the breach is very close in time to the discovery of the evidence (regardless of whether the breach occurred at 12:40 AM or at 1:30 AM). The breach is contextual because it is part of a chain of events starting with Mr. Mahamud's arrest, and progressing until just before 5:00 AM when his right to counsel was finally facilitated by police." (Para 52)
"As for the evidence seized from the Blackberry, there is a direct causal connection between the search of the Blackberry, which breached Mr. Mahamud's s. 8 Charter right, and the eleven text messages seized from it. That evidence was "obtained in a manner" contrary to the rights guaranteed by the Charter." (Para 53)
Seriousness of the State Charter Violation
"In addition, even if Cst. Anderson had reasonable grounds to initially deny Mr. Mahamud's right to access counsel, he failed to ensure that the right was facilitated immediately after his concerns were addressed. After his initial decision to delay Mr. Mahamud's right to access counsel, it appears that Cst. Anderson forgot that Mr. Mahamud's lawyer call was outstanding. However, at 3:15 AM, when "it came to [his] mind" that Mr. Mahamud's right to access counsel was still being delayed, Cst. Anderson did nothing to facilitate the right to the communication, continuing to delay the call until approximately 4:51 AM. This continued delay demonstrates, at best, a reckless disregard of the police's duty to facilitate contact with counsel (see: Rover at para 34). At worst, it is a wilful violation of the Charter right." (Para 58)
"The breach of Mr. Mahamud's s. 8 Charter right was also serious. Almost no attempt was made by the police officer searching the Blackberry to comply with the proper parameters of a search set out by the Supreme Court of Canada. The officer's notes were entirely deficient. At the voir dire, she had a limited and uncertain memory of what she searched and what applications existed on the Blackberry. Again, the manner in which this search was undertaken demonstrates a willful or reckless disregard of the police's obligation to ensure that proper procedures are followed so as not to infringe upon the constitutional rights of a person in custody." (Para 60)
Impact on the Charter Protected Interests of the Accused
"In Rover, Doherty J.A. comments on the fundamental importance of providing a detained person with access to legal counsel:
 The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated." (Para 63)
"Mr. Mahamud was held for hours without access to counsel. There is no evidence that police communicated with him about the delay or let him know when he might expect to be allowed to contact a lawyer." (Para 64)
"With respect to the Blackberry, the completely deficient search report makes it impossible for me to determine whether the search was reasonably limited to its purpose. Police conduct that prevents meaningful judicial review results in a very significant impact on the accused's Charter-protected interest, especially in the context of a search incidental to arrest with no prior judicial authorization." (Para 67)
"Two significant breaches of the Charter flow from Mr. Mahamud’s arrest. I have found that both of these breaches are the result of a general disregard or indifference by the police toward their duty to employ procedures and safeguards that protect a detained person’s rights. The police have a duty to implement the right to counsel and to ensure that any searches comply with procedures articulated by the Supreme Court of Canada. There is no room for apathy respecting that duty. The seriousness of such indifference supports exclusion. The significant negative impact on the breach of the accused’s Charter rights also supports exclusion, although to a lesser degree. Having regard to all the circumstances, these two considerations together outweigh society’s interests in an adjudication on the merits. As noted by the Ontario Court of Appeal in R v McGuffie, 2016 ONCA 365 (CanLII) at para 63, 131 OR (3d) 643: “…If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…”." (Para 71)
Evidence of the search of the car and Blackberry were excluded. (Para 72)
R v Herman (SKPC)
[May 21/19] Charter s.11(b) - Exceptional Circumstances - Weather Delays and Electrical Blackouts - 2019 SKPC 31 [M. Martinez Prov. J.]
AUTHOR’S NOTE: In this decision, Judge Martinez deals with what could generally be described as unforeseeable events: weather delays preventing access to a court and electrical blackouts of the court building. In the circumstances of this case, this did not excuse the Crown from large swaths of time leading to a stay on 11(b).
Section 11(b) Legal Framework
"The framework for assessing whether an accused person’s provincial court trial has been delayed unreasonably is as follows:
• First, calculate the total period of delay from laying of the charges to the anticipated end of the trial.
• Second, deduct any delay attributable to the defence.
• Third, if the remaining period of delay exceeds 18 months, the delay is presumed to be unreasonable and the court must stay the charges unless the Crown shows that other periods of delay should be deducted because they resulted from exceptional circumstances outside of the Crown’s control.
• Fourth, if the remaining period of delay still exceeds 18 months, the court must stay the charges.
• Fifth, if the remaining delay falls below the 18 month presumptive ceiling, the court may stay the charges if the defence demonstrates that the period of delay still is unreasonable.
[R v Jordan, 2016 SCC 27 (CanLII) at paras 46-48,  1 SCR 631 [Jordan]; R v Coulter, 2016 ONCA 704 (CanLII) at paras 34-40, 340 CCC (3d) 429]" (Para 7)
Application to the Facts
"In both cases, Mr. Herman's trials were scheduled to be heard on May 16, 2019. The total delay in the case of Information 484 is about 28.25 months. The total delay is about 19 months in relation to Information 071." (Para 4)
"On May 3, 2018, a judge, a court clerk, prosecutors, and defence lawyers [the court party], boarded a charter aircraft in Meadow Lake and flew to La Loche. The court party arrived safely in La Loche, only to discover that the power was out with no estimated time when it would return. For this reason the court party returned to Meadow Lake. Everyone who had business before the court that day had to be located and summoned back to court on another day." (Para 14)
"Unfortunately, the defendant's trial did not proceed on February 7, 2019, as the court party did not fly to La Loche that day because of dangerous weather conditions: -38°C in La Loche, with wind chills approaching -50°C, and with an even colder ambient temperature in Meadow Lake [A court sitting that is cancelled because of unsafe travel conditions is referred to locally as a "weather out", which is how I will refer to it in the remainder of my decision]." (Para 17)
"The Crown concedes that there is nothing complex about Mr. Herman's cases. However, the Crown submits that I should deduct the periods of delay caused by the discrete events of the unplanned power outage that occurred on Mr. Herman's first trial date, and the weather out that prevented the court party from travelling to La Loche on the day of his second trial." (Para 33)
"The defendant submits that neither of the events qualifies as an exceptional circumstance because, in northwestern Saskatchewan such events are generally foreseeable and because something could have be done, and should have been done, in advance, to completely eliminate, or, at the very least, to substantially reduce, the delay caused by events such as these." (Para 35)
"In response, the Crown submits that the contingency planning suggested by the defendant falls outside the definition of exceptional circumstances as it is not within Crown counsel's control." (Para 37)
"A discrete event is an event that is distinct and separate from other events. In the Jordan framework, an event qualifies as a discrete event if Crown counsel cannot reasonably anticipate the event in advance. The event need not be rare: Jordan at para 9." (Para 38)
"No one can predict an unplanned power outage. Neither can anyone predict the weather far enough in advance of a trial to do anything about whether dangerous travel conditions may affect an upcoming trial." (Para 39)
"For these reasons, weather outs and power outages fall within the first part of the Supreme Court of Canada's definition of discrete event exceptional circumstances." (Para 40)
"The Crown submitted that the Jordan framework mandates that even an unreasonably long period of delay caused by a discrete event exceptional circumstance must be subtracted from the total period of delay. The Supreme Court’s position on this issue, as articulated in Jordan at paragraph 75, is somewhat more nuanced:
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).
[emphasis added; citations omitted] (Para 60)
"Despite the tenor of defence counsel’s submissions, he did not suggest, nor did he provide evidence about, what portion of institutional delay I should not subtract because “the Crown and the system could reasonably have mitigated” it. For this reason, I am left with an “all or nothing” choice. That being the case, the final question I must answer is “Do the discrete events in this case qualify as exceptional circumstances as defined in Jordan?”" (Para 61)
"As I noted in paragraph 31, above, an unforeseen discrete event does not qualify as an exceptional circumstance unless the Crown demonstrates that Crown counsel could not have remedied the delay that resulted from the discrete event. Put another way, the Crown must show that Crown counsel was proactive in seeking to reduce the delay caused by the unforeseen event" (Para 62)
"For practical purposes, what this means is that, if the Crown wishes to rely on discrete event delay to justify trial delay exceeding the presumptive ceiling, it must demonstrate either:
• that Crown counsel took reasonable steps to remedy, or mitigate, the delay caused by the unforeseen events, or
• that there was nothing Crown counsel could have done to remedy the delay caused by those events." (Para 63)
"The position taken by the Crown in this case is that, by accepting the first trial date offered by the court, Crown counsel did everything he or she reasonably could have done to remedy the delay caused by the power outage and by the weather out." (Para 64)
"In my opinion, the Crown is doing what the Supreme Court said it cannot do. The Crown simply is pointing to the difficulties posed by the unplanned power outage and the weather out. It is not demonstrating that Crown counsel "took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling"." (Para 65)
"In argument, the defendant suggested that the use of a portable generator and construction lights would have totally eliminated the delay caused by the power outage. I know that, in similar circumstances, a portable generator and portable lights have saved the day in other northern court locations. The Crown did not offer any evidence that, on the day of the power outage, such equipment was not available or that Crown counsel looked into the possibility of obtaining such equipment from, for example, the La Loche R.C.M.P. detachment, and was refused." (Para 66)
"Further, the Crown did not establish that Crown counsel could not have reduced the periods of delay emanating from these events in any other way. For example, could Crown counsel have brought forward for adjournment other trial matters that did not having looming trial delay issues? Of course, I am mindful of the fact that, because trial delay in La Loche is a chronic problem, it may be that no such, less time constrained, trial matters existed. However, the point is that it is up to the Crown to bring such information to the court's attention when it wishes to rely on discrete event delay to justify otherwise unreasonable trial delay." (Para 67)
"Not only did the Crown fail to establish that Crown counsel could not have ameliorated the delay caused by the discrete events, the evidence is that Crown counsel ignored an opportunity to do so when he or she did not respond to defence counsel's request to bring his client's matters forward from the date on which the defendant had been summoned to appear in court following the power outage." (Para 68)
"As the Crown has not demonstrated that Crown counsel could not have remedied, or mitigated, the delay caused by the power outage and the weather out, neither of these events meet the definition of exceptional circumstances." (Para 69)
Proceedings stayed (Para 70)
R v Knight (ONSC)
[Apr 18/19] – Possession and Circumstantial Evidence – 2019 ONSC 2443 [P.A. Schreck J.]
AUTHOR’S NOTE: In this case the contents of a car are found not to be in the possession of the registered owner who is operating the car. It demonstrates how there can be a doubt about knowledge and therefore possession of controlled substances found in your own vehicle.
"Sixty grams of cocaine and a gram of heroin were hidden in the false bottom of an aerosol can found in the trunk of a car registered to and operated by Andrew Knight. The Crown alleges that Mr. Knight knew the drugs were there and that he is guilty of possessing them for the purpose of trafficking. Mr. Knight denies knowledge of the drugs, which he says belonged to a woman he was in a relationship with and who shared the car. As in many cases where contraband is found in a car, the Crown relies on circumstantial evidence and the issues the court must determine are whether Mr. Knight's denial is believed or raises a reasonable doubt and, if not, whether his guilt is the only reasonable inference to be drawn from the evidence the court does accept." (Para 1)
"He was followed to a nearby plaza, where he got out of the car and walked up to another vehicle. At 7:13 p.m., Mr. Knight opened the passenger side door of this vehicle, got in, and then got out again four minutes later. He then went into a restaurant in the plaza and came out a short while later carrying a container of food. He then left the plaza in the Mercedes." (Para 2)
Mr. Knight testified about this incident saying, "On March 29, 2017, Mr. Knight met Ms. Garcia at a coffee shop and she gave him the Mercedes. It was his belief that she then took a taxi or an Uber home. On March 30, 2017, Mr. Knight picked his daughter up from school in the Mercedes and took her home. Later in the day, he left home and drove to a restaurant to get something to eat. When he arrived at the plaza where the restaurant was, he saw a friend of his in the parking lot. He entered his friend's vehicle, had a quick chat, and then got out. After buying food at the restaurant, he bought gasoline and then went to the liquor store to buy wine. From there, he began to drive to a friend's house. On his way there, he was stopped and arrested." (Para 15)
"The trunk of the Mercedes was full of a number of items, including the liquor store bag which had been placed there earlier, several plastic shopping bags, two pairs of shoes, and two aerosol cans. One of the aerosol cans, which was marked "Autobrite Tire Shine", was found to have a false bottom in which was secreted two small packages. Inside the packages was 59.6 grams of crack cocaine and one gram of a mixture of heroin, furanyl and fentanyl." (Para 6)
"Inside the glove compartment, the police found a number of papers including parking tickets with the Mercedes's licence plate number on them, a parking infraction notice with Mr. Knight's name and the Falstaff Avenue address on it, and a number of Western Union documents." (Para 7)
"The police also executed search warrants at the Falstaff Avenue and Clay Brick Court addresses on the same day.... There was no evidence of anything of evidentiary value being found at either address." (Para 10)
"Mr. Knight testified that at the time of his arrest, he had been involved in an extramarital relationship with Carlene Garcia, one of the people who had been present at the Clay Brick Court address when the police executed a search warrant there. Ms. Garcia lived at that address with her brother and nephew. Mr. Knight's wife did not know about the relationship, although she found out after Mr. Knight was arrested." (Para 12)
"According to Mr. Knight, the Mercedes belonged to Ms. Garcia. However, when she drove it, she was frequently stopped by the police because the police believed her to be associated with another individual who had been arrested for drug offences. As a result, Ms. Garcia asked Mr. Knight to register the Mercedes in his name as he did not have a criminal record. He agreed and the ownership of the vehicle was transferred to him in April 2016. Ms. Garcia continued to pay for the insurance on the vehicle. At trial, Mr. Knight produced documentation showing that the Mercedes was insured in Ms. Garcia's name. The Crown accepts that these documents are authentic." (Para 13)
Possession and Circumstantial Evidence
"Mr. Knight is charged with possessing the drugs found in the aerosol can for the purpose of trafficking. There is no issue that the value and quantity of the drugs was such that whoever possessed them did so for the purpose of trafficking. It is well established that to prove possession, the Crown must prove that Mr. Knight had both knowledge and control of the drugs: R. v. Morelli, 2010 SCC 8 (CanLII),  1 S.C.R. 253, at para. 15; R. v. Bains, 2015 ONCA 677 (CanLII), 127 O.R. (3d) 545, at para. 155. Mr. Knight concedes the control has been proven, as he was operating the Mercedes and it was registered in his name. Thus, the only issue that I must determine is whether the Crown has proven beyond a reasonable doubt that Mr. Knight had knowledge of the drugs." (Para 17)
"The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 (CanLII),  1 S.C.R. 1000, where Cromwell J. explained (Para. 18)... (at paras. 35-37)::
Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. ... "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (Para 19)
"It is important to keep in mind that the issue is whether the circumstantial evidence supports inferences other than guilt. Such alternative inferences must be reasonable, but need not be as strong or as compelling as the inference of guilt. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference." (Para 20)
" In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117 (CanLII), at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368(CanLII), at para. 4." (Para 21)
Application of the Law
"I have considerable difficulty with many aspects of Mr. Knight's evidence.... Given the difficulties with Mr. Knight's testimony, I am unable to rely on most of it, with the exception of his evidence that Ms. Garcia used the Mercedes." (Para 23-34)
"In assessing whether the Crown has proven knowledge, I accept the following primary facts:
• Mr. Knight was the registered owner of the Mercedes and made frequent use of it.
• He was the only occupant of the vehicle on the day on which the drugs were found.
• Items belonging to Mr. Knight were in car, including in the trunk where the drugs were found.
• The drugs were well hidden and not visible.
• There is no evidence that Mr. Knight's fingerprints or DNA were found on the aerosol can.
• The drugs were of considerable value.
• Ms. Garcia also had access to and made use of the car. (Para 25)
"There is no doubt that the value of contraband can lead to an inference of knowledge in some circumstances. It is not, however, an inference that must be drawn in all cases, particularly where the contraband is well hidden. Ultimately, this is one piece of evidence which must be considered together with all of the other circumstances." (Para 27)
"The circumstantial evidence in this case clearly leads to the inference that Mr. Knight had knowledge of the drugs hidden in the aerosol can. Not only is this an available inference, it is a strong one. But that is not the issue. The issue is whether it is the only reasonable inference. Mr. Knight submits that an alternative inference is that Ms. Garcia put the drugs in the car without Mr. Knight’s knowledge. If she did, she was most careless. Mr. Knight might have tried to use the aerosol can and discard it when it did not work. However, people are sometimes careless. Having considered all of the circumstances, I am unable to say that the defence theory is not a “plausible” or a “reasonable possibility”. It is unlikely, but not to the point of being “irrational or fanciful.” Put another way, after considering all of the evidence, I am left with a reasonable doubt. Mr. Knight is very likely guilty, but the evidence falls short of proving his guilt to the requisite standard." (Para 28)