This week’s top three summaries: R v Satkunananthan, 2022 ONCA 393: PPT #expert, R v Mbuyama, 2022 ONSC 2491: #circumstantial ev and gun possession, and R v Thompson, 2022 ONSC 2712: 11(b) #delay and covid.
This week’s top case deals with impermissible evidence from possession for the purpose of trafficking experts. For a great overview text on expert evidence in criminal defence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Qualifying and Challenging Expert Evidence
By Eric V. Gottardi, Jennifer A. MacLellan, Michael Lacy & Robin Flumerfelt
R v Satkunananthan, 2022 ONCA 393
[May 16, 2022] Expert Evidence: Possession for the Purpose of Trafficking [Reasons by Janet Simmons, B.W. Miller and I.V.B. Nordheimer J.A.]
AUTHOR’S NOTE: To prove possession of drugs is for the purpose of trafficking, the Crown usually calls an experienced police officer that talks about the quantity, manner of packaging, other paraphernalia, and type of cash possessed by the accused at the time of the arrest. While these experts are allowed to talk about these factors and what indicates trafficking and what indicates mere possession, the question of whether they should be permitted to opine on the ultimate question is more complicated. Herein, the ONCA indicates this officer should not have been permitted to express his opinion, particularly since the Crown failed to call evidence about normal use quantities for the drug at question. The case provides a good overview of the law in the area and is a helpful authority for the defence.
Introduction
[1] Following a jury trial, the appellant was convicted of possession of oxycodone for the purpose of trafficking. While conducting a search of the appellant’s boyfriend’s vehicle, police found 180 Percocet pills in a gym bag that the appellant acknowledged was hers. The pills were in a ziplock bag that was inside a grocery bag. As described by a police witness at trial, Percocet is a prescription drug that contains 325 mg of acetaminophen and 5 mg of oxycodone.
[5] First, the appellant submits that the trial judge erred in permitting a police officer to give the opinion that possession of the Percocet pills was for the purpose of trafficking.
[7] In the particular circumstances of this case, I agree that the trial judge erred in permitting the police officer to give the opinion that possession of the Percocet pills was for the purpose of trafficking. Further, I would not apply the proviso as requested by the Crown to dismiss the appeal.
Background
[9] On February 5, 2016, the appellant was a front seat passenger in her boyfriend, Robert Bennett’s, Jeep when police pulled it over for a traffic violation. Police impounded the vehicle because Mr. Bennett’s driver’s licence was suspended, and because he was subject to a probation order prohibiting him from being in the front seat of a vehicle unless he was validly licenced to drive. He was also subject to a weapons prohibition. On searching Mr. Bennett, police found two cellphones and some cash.
[10] While conducting an inventory search of the vehicle, the police found a gym bag, which the appellant acknowledged belonged to her, on the back seat of the Jeep. The police officer who found the bag testified that the gym bag was partially open and that, after checking the appellant’s wallet that was inside the gym bag, he saw a double ziplocked bag containing a number of pills inside an open grocery bag. He seized the pills but not the gym bag. No other drug paraphernalia or indicia of trafficking was found in the Jeep.
[11] Police ultimately determined that there were 180 pills in the ziplock bag. A single pill submission to Health Canada tested positive for oxycodone.
[13] The appellant testified that she put her wallet on top of the gym bag when she got in the Jeep because it was too big to fit in her coat. She said that the pills were not hers and that she did not know they were in the gym bag. Although she had been prescribed prescription painkillers several years before when she had her wisdom teeth removed at age 15 or 16, she had not otherwise used prescription painkillers.
(1) Did the trial judge err in permitting a police officer to give the opinion that possession of the 180 Percocet pills was for the purpose of trafficking?
(a) The evidence
[14] At trial, the Crown applied to have Sergeant Harris of the Peel Regional Police Service qualified as an expert to give opinion evidence about drugs containing oxycodone, in particular, with respect to street value, terminology, packaging, distribution, patterns of use, and trafficking. The appellant challenged Sergeant Harris’ expertise and also challenged the need for expert evidence.
[15] Following a voir dire, the trial judge found that Sergeant Harris had significant experience with drugs such as cocaine but less experience with prescription drugs. Nonetheless, the trial judge accepted that Sergeant Harris had gained experience in relation to the use of illegally obtained prescription drugs, their value, and the manner of their distribution through conversations and debriefings with police officers, users of prescription medications, confidential informants, and accused persons.
[16] Ultimately, the trial judge qualified Sergeant Harris to give opinion evidence about the value of the seized pills, the source of such drugs on the street and the packaging used, and whether other paraphernalia was required for their use. The trial judge stipulated that the officer’s expertise did not extend to dosages or consumption rates. However, the trial judge permitted the officer to “provide an opinion as to the charge of possession for the [purpose] of trafficking based on the quantity seized, assuming all 180 of the pills contained oxycodone, their packaging and their value.” [PJM Emphasis]
[17] Before the jury, Sergeant Harris acknowledged that his previous experience in giving expert evidence had been primarily in relation to cocaine, crack cocaine, marijuana and methamphetamine. Further, on one previous occasion, he had been deemed not to be an expert in prescription-related drugs, specifically oxycodone. However, he confirmed that he felt qualified to give evidence about the value of oxycodone-type drugs, how they get on to the street, and packaging.
[18] Sergeant Harris explained that prescription drugs like Percocet usually make their way onto the illicit street market through pharmacies, either through fraudulent or unused prescriptions, or break-ins. Unlike, for example, powdered drugs, there is no specific packaging for prescription drugs. He had seen them in prescription bottles with the stickers taken off, in plastic bags, or just loose in people’s pockets.He could not give a specific number of Percocet pills that would indicate a person was a dealer. He had seen traffickers in possession of pills in the high hundreds to thousands and he had also seen traffickers with smaller amounts, in the low hundreds.
[19] Concerning value, he noted that Percocet contains 325 mg of acetaminophen and 5 mg of oxycodone. Street-level oxycodone is valued at one dollar per milligram, so 5 mg would have a street value of about $5 per Percocet pill. However, if purchased in bulk, the price could go as low as $2.50 per Percocet pill. So, 180 Percocet pills would be worth between $450 and $900 if sold on the street, depending on whether they were sold individually or in bulk.
[20] Sergeant Harris testified “there is no reason for a person prescribed an actual prescription to carry around their bottle without the actual bottle in itself.” In his view, “transporting 180 pills in a Ziploc bag does not make sense for someone who is getting them legally.”
[21] When asked if he drew any conclusions based on the facts of this case, Sergeant Harris stated, “180 Percocets is a large amount of Percocets”, worth between $450 to $900. Had they been obtained legally he would have thought they would remain in the prescription bottle with a name on it and not be in a ziplock bag. Further, in his experience, users (as opposed to traffickers) would generally carry with them only the number of pills they needed while away from their safe storage location for fear of losing their supply, being mugged, or being investigated by the police. In his opinion, having “180 Percocets in a Ziploc bag in a vehicle” was for the purpose of trafficking.
(b) The admissibility issue
[22] The appellant does not take issue with Sergeant Harris’ evidence about pricing and how illegally obtained prescription pills end up on the street. However, she submits that the trial judge erred in permitting Sergeant Harris to give opinion evidence concerning whether the possession in this case was for the purpose of trafficking as opposed to for personal use. …
[25] I agree that Sergeant Harris’ evidence concerning the quantity and value of the seized pills, how street drugs are packaged, and users’ fears about losing their supply was relevant to whether possession for the purpose of trafficking was established and that such evidence was properly admitted. However, I do not agree that it was appropriate for Sergeant Harris to go further and give his opinion that, based on this evidence, the possession of the pills was for the purpose of trafficking.
[26] In the circumstances of this case, the latter opinion was not only not necessary, it created a risk that the jury would not critically consider both the evidence that was in front of them along with the absence of evidence.
[27] Opinion evidence is presumptively inadmissible. It may be admitted only where the party tendering it can show:
i) the evidence is logically relevant;
ii) the evidence is necessary to assist the trier of fact;
iii) the evidence is not barred by another exclusionary rule; and
iv) the witness is a properly qualified expert.
[28] Assuming the proffered evidence meets these preconditions, the trial judge retains a residual discretion to exclude the evidence where the probative value does not exceed the prejudicial effect. See R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 43-48; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 16-25.
[29] In this case, the Crown’s evidence relevant to the issue of whether the pills were possessed for the purpose of trafficking was straightforward and easy to understand. It pertained to the quantity of pills, their value, how street pills are packaged,2 and Sergeant Harris’ experience concerning the quantity users would typically carry with them at any time. Based on Sergeant Harris’ evidence concerning these matters, it was open to the Crown to invite the jury to draw the inference that possession was for the purpose of trafficking. The jury did not require opinion evidence to assist them in assessing what inferences were available from this straightforward evidence.
[30] What should not be overlooked, however, is the failure of the Crown to adduce admissible expert evidence about dosages or consumption rates, evidence which would have been highly relevant to the nature of the possession. Although Sergeant Harris testified about consumption rates during the admissibility voir dire, the trial judge did not permit him to give this evidence at trial because it exceeded his expertise.
[31] In these circumstances, in my view, Sergeant Harris should not have been permitted to give the opinion that possession of the pills was for the purpose of trafficking based on the evidence he was permitted to give. It was for the jury to determine whether that inference should be drawn taking account of the straightforward evidence he gave as well as the absence of evidence of dosages and consumption rates.
[32] … However, in the face of an experienced police officer’s stated opinion that possession of 180 pills in a ziplock bag was for the purpose of trafficking, I consider that there was a real risk that the jury may simply have accepted that opinion without critically considering the impact of the absence of evidence concerning dosages and consumption rates. In my view, the question of the proper inference to be drawn from both the evidence and the absence of evidence relevant to the issue of possession for the purpose of trafficking was an issue uniquely for the jury to assess.
(c) Does the curative proviso apply?
[41] I would not apply the proviso in all the circumstances of this case.
[42] As a starting point, I reject the Crown’s submission that Sergeant Harris’ evidence about patterns of use made a finding that the appellant’s possession was for the purpose of trafficking inevitable. …
[43] Second, while I acknowledge that there is undoubtedly some number of Percocet pills that would make a finding of possession for the purpose of trafficking inevitable as a matter of common sense, in the absence of admissible evidence about dosages and consumption rates, I am not persuaded that 180 is that number. Without admissible evidence about dosages and consumption rates, the inevitability of such a conclusion is, in my view, speculative.
[44] … I do not view it as inconceivable that, in the absence of Sergeant Harris’ opinion that the possession of 180 pills in a ziplock bag was for the purpose of trafficking, a juror could have a doubt about that issue based on this identified absence of evidence.
Disposition
[50] Based on the foregoing reasons, I would set aside the appellant’s conviction for possession of oxycodone for the purpose of trafficking. Given counsel’s agreement that a verdict be substituted and the appellant’s submission that a sentence not giving rise to a criminal record may be appropriate, I would direct counsel to provide brief written submissions not to exceed seven pages within 10 days of the release of these reasons concerning what disposition and sentence should be imposed under ss. 686(1)(b)(i) and 686(3) of the Criminal Code.
R v Mbuyamba and Anderson, 2022 ONSC 2491
[April 27, 2022] Circumstantial Evidence and Possession of Firearms [Roger J.]
AUTHOR’S NOTE: This case provides an excellent example of where suspicious behaviour doesn’t amount to proof beyond a reasonable doubt of knowledge that firearms are located inside a vehicle. Here, suspicious text message communications between the driver and the person picked up from the river crossing from the US border and physical possession in the of a duffle bag filled with guns in the trunk was insufficient to establish guilt beyond a reasonable double.
Reasons for Decision
[1] The accused are charged with weapons related offences. …
[2] The Crown’s case is entirely circumstantial, and the accused did not testify.
Background
[3] The alleged offences occurred in the area near Cornwall, Ontario, on June 10, 2020.
[4] An officer with the Canada Border Services Agency (“CBSA”), testified that they received intelligence from their American counterpart about possible smuggling activities on June 10, 2020. He explained that consequently, the CBSA and border integrity officers with the Royal Canadian Mounted Police (“RCMP”), located in Cornwall, were particularly active that day.
[5] The CBSA and RCMP were on the lookout for suspicious activities on the St. Lawrence River. The CBSA officer was positioned in an unmarked vehicle near a local restaurant fronting on the river, trying not to be noticed, and watching the river. Three RCMP officers were posted at other locations in separate marked vehicles, also surveilling the river. In addition, an RCMP marine team was patrolling the river.
[7] At about 20:27, the CBSA officer noticed an approaching motorboat. He saw three people onboard and thought that the boat seemed suspicious when it stopped and hovered near the dock of the restaurant, seemingly waiting. He testified that he could see the occupants using their cellular phone. He surreptitiously took pictures of a small runabout boat, light in colour, with some red markings, a light grey or light blue Johnson outboard motor, and registered in New York State.
[8] Shortly after, at about 20:44, the CBSA officer observed the boat land at the restaurant’s dock and one male exit the boat carrying a duffel bag. The bag appeared to be heavy. The boat left and the person with the duffel bag seemed to be waiting for someone, while trying to conceal the bag and to look inconspicuous by leaning against the wall of the restaurant. Shortly after, a dark Honda CR-V SUV pulled up and the man with the bag put the bag in the rear hatch and boarded the back seat of the car, which then left.
[10] The vehicle stopped by the RCMP had four occupants. The accused, Barou Mbuyamba, born July 2000, was the driver. His friend, the accused, Jevon Anderson, was the front seat passenger. The backseat passenger-side passenger matched the description of the man seen disembarking the small boat with a duffel bag and embarking in a dark coloured vehicle matching the description and licence plate of this vehicle; he was identified as Tony N’Zoigba. The backseat driver-side passenger was a Mr. Kwadwo Danso-Manu.
[14] When they were stopped by the police, all occupants of the vehicle appeared nervous, although the officer who testified about this indicated that it is not uncommon for people to be nervous in such circumstances.
[15] Mr. Mbuyamba told the officer that he did not know why they were being stopped. It was explained that it was because they were observed in proximity to the border, and that their vehicle would be searched under s. 99 of the Customs Act.
[16] A duffel bag matching the description relayed over the radio by the CBSA officer was found in the rear hatch of the vehicle. It contained the nine handguns and fourteen high-capacity detachable cartridge magazines listed on the indictment. Other duffel bags were also found in the rear hatch, but they contained clothing and products typically associated with overnight travel.
[17] When the vehicle was stopped, Mr. Anderson was observed to be busy gathering and counting $20 dollar bills; he told the officer that it was his money. He also asked the officer, upon being informed that he was under arrest for the guns and magazines found in the car, “is that what you guys found?”.
[18] All occupants were searched. Mr. Mbuyamba had $240 cash and one cellphone. Mr. Anderson had $2,700 cash loose in his pockets and one cellphone. Mr. N’Zoigba had one cellphone and otherwise did not have anything of significance on him, and Mr. Danso-Manu had $570 and two cellphones….
[19] The cellphone of Mr. Anderson was not password protected (he told the police that it was his phone and that it was not password protected), and the police were able to extract text and call information from his phone. The police were only able to extract videos from the phone of Mr. N’Zoigba.
[20] When observing the still images made from the videos taken from the phone of Mr. N’Zoigba, it is apparent that the nine handguns shown on those images are the same as the nine handguns seized in the accused’s CR-V. Although we cannot see their serial number, we nonetheless see that the shape and contour of the guns are the same. We can also see, on those images, that the person holding each of the nine handguns wore a purple sweater (as we see his hand and sleeve on the images), which matches the observations made of the sweater worn by Mr. N’Zoigba when he disembarked from the boat and when he was arrested. It is apparent from the evidence that Mr. N’Zoigba used his phone to make videos of the nine handguns which were later found in his duffel bag in the rear hatch of the accused’s CR-V.
[21] Mr. N’Zoigba pleaded guilty to importation and possession of nine handguns and fourteen high-capacity detachable cartridge magazines, contrary to s. 103(1)(a) of the Criminal Code and ss. 155 and 160 of the Customs Act.
[22] The text messages and telephone records show that Mr. Anderson and Mr. N’Zoigba communicated by text and phone from June 7 to June 10, 2020. …
[24] The above texts show that from June 7 to June 10, 2020, Mr. Anderson and Mr. N’Zoigba were communicating to arrange a meeting. They show that Mr. N’Zoigba inquired about telephone calls from a Kevin and a KD. They shared some social media coordinates.
[25] They initially expected to meet at about 13:00 on June 10, 2020. At 12:21 and 13:31, Mr. N’Zoigba advised Mr. Anderson that his bus was delayed, that his “ride up north is delayed”. By 13:32, Mr. Anderson appears to be growing impatient and asks for confirmation of the meeting time. Mr. N’Zoigba responds that they should be meeting at about 17:00.
[27] … At 20:27, Mr. N’Zoigba texted Mr. Anderson the address of the local restaurant where, at about the same time, the boat was observed by the CBSA officer. At 20:30, Mr. Anderson confirmed the new address and indicated that he was at the gas station, most likely on Cornwall Island because, shortly before, their vehicle was observed driving south on the bridge towards that island or the United States, and, shortly after, their vehicle was at the Canadian border crossing. At 20:31 and thereafter, Mr. Costanzi, the passenger in the boat, is the only one who communicates with Mr. Anderson, most likely because Mr. N’Zoigba’s phone battery ran out. At 20:31, Mr. Costanzi asked Mr. Anderson to confirm the pickup, and at 20:37 Mr. Anderson responded that they will be delayed ten minutes because they must clear the border inspection, which matches the evidence given by the border agent.
[28] … At 20:50, Mr. Costanzi texted “good job, be safe”, and after confirming that he was back on shore at 20:54, Mr. Costanzi repeatedly unsuccessfully tried to call Mr. N’Zoigba (on eight occasions during the next seventy minutes).
Issues
[29] The evidence in this case is entirely circumstantial. The primary issue is whether the circumstantial evidence presented by the Crown proves beyond a reasonable doubt that the accused committed the offences charged.
Legal Principles
General Principles
[30] Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown. That heavy burden of proof never shifts. An accused has no obligation to establish his or her innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms.
[34] … As the Supreme Court of Canada has confirmed, an accused’s silence at trial is not evidence of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.”: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at para. 4. If, after considering the whole of the evidence, the judge is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the judge cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt: see Prokofiew, per Moldaver J. at paras. 4, 10-12, 15, 20-21, 26, and per Fish J. at paras. 64-65.
[35] The heavy onus of proving guilt beyond a reasonable doubt is always on the Crown because of the risks that accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, the evidence must establish beyond a reasonable doubt that the accused committed the offences with which the accused is charged. If the evidence is not strong enough to convince the judge with that degree of certainty that the accused committed the offence, the accused must be acquitted.
Possession, Knowledge, and Circumstantial Evidence
[36] In a case such as this, where the evidence of the Crown is entirely circumstantial, the application of this burden of proof requires that the judge must be satisfied that the only reasonable or rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. If there are reasonable inferences other than guilt, the Crown’s evidence does not establish the alleged guilt of the accused beyond a reasonable doubt: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 17-22, 28-30, 32-38; R. v. Pearle, 2016 ONCA 954, at para. 7; and R. v. Biggs, 2016 ONCA 910, 34 C.R. (7th) 147, at para. 17. The circumstantial case against the accused must be considered as a whole; it is only the cumulative effect of the evidence that must satisfy the Crown’s burden of proof to justify conviction.
[37] With respect to the charges before the court, the Crown must prove beyond a reasonable doubt that the accused knew, as an occupant of the motor vehicle, that the handguns and magazines were within the motor vehicle: see R. v. Styles-Lyons, 2012 ONSC 5812, at paras. 95-97.
[38] An accused must knowingly possess a weapon. This is summarized in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15-17:
[15] For the purposes of the Criminal Code, “possession” is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.
[16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
[17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “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” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.
[41] In circumstances where the weapon is not “readily visible”, knowledge cannot be inferred without direct or sufficient circumstantial evidence to satisfy the court that such an inference is the only reasonable one to be drawn from the evidence: see Styles-Lyons, at para. 103.
[42] There is no presumption that the driver of a vehicle has knowledge of its contents: see R. v. Lincoln,2012 ONCA 542, at para. 3:
This line of reasoning constituted an error in law, in our view. It in effect applied a presumption that, because Mr. Lincoln was the operator of the vehicle at the time, he is deemed to have knowledge and control of its contents, unless there is evidence to the contrary. No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption. See R. v. Watson, 2011 ONCA 437, at paras. 11-13.
[43] In Villaromanthe Court indicates at paras. 30, 35-37:
[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
. . .
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “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.
[44] The line between a plausible theory and speculation is not always easy to draw, but the basic question is whether the circumstantial evidence, viewed logically, in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: see Villaroman, at para. 38. One must also be careful in drawing conclusions based on stereotypes or how one assumes an accused person would or would not act: see R. v. Atem, [2021] O.J. No. 3320 (Ont. C.J.), at para. 23.
[45] It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant: see Anderson-Wilson, at para. 74.
1) The physical proximity of the firearm to the accused.
2) The degree of visibility of the firearm.
3) The degree of communal use of a vehicle containing the firearm.
4) The size, nature, and number of weapons in a particular space.
5) The nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control.
[46] It is not sufficient for the circumstantial evidence to give rise only “to a high degree of suspicion” while falling short of establishing that the only reasonable inference to be drawn from the proven facts is guilt: see Anderson-Wilson, at para. 77, citing R. v. Freeman (2006), 2006 CanLII 8027 (ON CA), 141 C.R.R. (2d) 217 (Ont. C.A.), at para. 7; see also R. v. Jean, 2010 ONCA 885, at para. 5.
Analysis
[47] For the following reasons, I am not satisfied beyond a reasonable doubt of the guilt of either of the accused because I am not satisfied that guilt is the only reasonable or rational inference that can be drawn from the circumstantial evidence applicable to either. In my view, another reasonable inference that can be drawn from the circumstantial evidence is that the accused were personal friends of Mr. N’Zoigba who agreed to help him out that day with transportation from Cornwall for reasons other than the alleged joint enterprise to smuggle guns and high-capacity cartridge magazines into Canada. My conclusion is based on my assessment of the circumstantial evidence, viewed cumulatively and as a whole.
[48] The circumstantial evidence does not establish that either of the accused knew that Mr. N’Zoigba was transporting guns and cartridge magazines, or that either of these were in Mr. N’Zoigba’s duffel bag or, consequently, in their vehicle. There is no mention of guns or cartridge magazines in the communications between Mr. Anderson and Mr. N’Zoigba (and Mr. Costanzi). The duffel bag was placed in the rear hatch of the CR-V by Mr. N’Zoigba. The vehicle then quickly left and was observed driving away. It was intercepted by the RCMP less than 15 minutes later, and there is no evidence that the accused stopped anywhere. The vehicle was searched by the RCMP, the duffel bag was found still within the rear hatch of the CR-V, and there is no evidence that the bag did not remain there for the entire but brief period between when it was placed there by Mr. N’Zoigba and when the vehicle was intercepted by the RCMP. The two accused were good friends, and both were friends with Mr. N’Zoigba. The latter needed a ride, and the accused considered bringing two other friends, including his girlfriend, and possibly staying somewhere overnight; overnight bags were found in the CR-V.
[51] Here, the cumulative effect of the evidence gives rise to competing inferences. The evidence includes:
• the accused Mr. Mbuyamba not being forthright with his girlfriend about where he was going to pick-up his friend;
• the sense of urgency that Mr. Mbuyamba communicated to his girlfriend;
• borrowing her car which arguably could not easily be traced back to him;
• the accused’s girlfriend being concerned when the accused did not quickly return;
• the text messages between Mr. Anderson and Mr. N’Zoigba (and Mr. Costanzi most likely only because Mr. N’Zoigba’s phone stopped working) reproduced above;
• how Mr. N’Zoigba and the accused appeared to have been concerned about nearby police presence;
• how they consequently changed the pick-up address;
• the accused being dishonest with the border officer about where they had been (saying that they had just turned around when in fact they had driven to Cornwall Island);
• how Mr. N’Zoigba tried not to be noticed while waiting to be picked-up;
• how quickly the accused picked-up Mr. N’Zoigba, and how quickly they drove away;
• the accused obviously knowing that Mr. N’Zoigba placed a duffel bag in the rear hatch of the CR-V just prior to boarding the CR-V;
• Mr. N’Zoigba obviously knowing that he was importing and in possession of nine handguns and fourteen high-capacity cartridge magazines, and the guns and cartridge magazines found on videos on Mr. N’Zoigba’s phone being the same as those found in his duffel bag;
• Mr. Anderson, the front seat passenger, obviously relaying instructions to his friend and driver, Mr. Mbuyamba;
• Mr. Anderson being busy counting $20 bills, possibly a payment by Mr. N’Zoigba, totaling $2,700, and the amount of cash found on the other accused and on the rear seat passenger, Mr. Dansu-Manu;
• all occupants of the CR-V appearing nervous when intercepted by the police;
• what each of the accused said upon being stopped and arrested – Mr. Mbuyamba told the officer that he did not know why they were being stopped; Mr. Anderson told the officer that it was his money that he was busy gathering, he asked “is that what you guys found” when told what had been found, and said that it was his phone and that it was not password protected; and
• Mr. Costanzi repeatedly unsuccessfully calling Mr. Anderson (on eight occasions during the next seventy minutes).
[52] The cumulative effect of the evidence does not satisfy me that the only rational inference that can be drawn from the circumstantial evidence is that either of the accused is guilty, as there exists a rational, non-guilty inference that is sufficient to raise a reasonable doubt – friends agreeing to pick-up a friend coming in illegally from the United States for reasons other than the three were involved in a joint enterprise to smuggle guns and high-capacity cartridge magazines into Canada: see R. v. Anderson-Wilson, at para. 72, citing R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 34.
[53] When assessing the evidence, it is important not to confuse what was said and done by Mr. N’Zoigba, who clearly knew what he was transporting, from what was said and done by either of the accused. It is important as well to be mindful of possible stereotypical reasoning. And it is also important not to jump to conclusions too quickly by “filling in the blanks” as we obviously now know that there were guns in Mr. N’Zoigba’s duffel bag. Knowing that Mr. N’Zoigba entered Canada illegally from the United States does not prove knowledge of what was in his bag. The whole of the evidence only proving that the accused possibly or even probably knew what was in the bag is not sufficient.
Conclusion
[55] Consequently, each of the accused is found not guilty on all counts of the indictment, and a forfeiture order may go to the Crown for the nine handguns and high-capacity magazines.
R v Thompson, 2022 ONSC 2712
[May 6, 2022] Charter 11(b) – Exceptional Circumstances – Covid-19 Shutdowns [Miller J.]
AUTHOR’S NOTE: This case provides a good overview of the dispute about how to treat covid-19 delay in Ontario. It adopts the view that is ultimately more protective of 11(b) rights because such shutdowns can have variable actual effects on the amount of actual delay. Delay in trial matters that fell within covid-19 court shutdowns is subtracted as exceptional circumstances by subtracting the time from the end of the trial that is adjourned to the end of the trial that replaces it. The other view (rejected here) is that you subtract a set period of time during which the court was shutdown for Covid-19.
Overview
[1] Mary Thompson is charged with, between the 1st day of January 2012 and the 31st day of December 2017, defrauding G.T.A.A. of money over $5,000.
[2] Ms Thompson applies for a stay of proceedings as a s. 24 (1) remedy due to a violation of her right, pursuant to s. 11(b) of the Charter, to trial within a reasonable time. Her trial, estimated to take four to five weeks with a jury, is scheduled to commence May 24, 2022, and is anticipated to be completed by June 27, 2022 at the outside. Her position is that the delay exceeds the ceiling set by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27.
[3] The Crown’s position is that after taking into account defence delay and delay attributable to the exceptional circumstance of the COVID-19 pandemic, the remaining delay is below the presumptive ceiling set in Jordan, and there should be no stay of proceedings.
[5] … The Information was sworn May 30, 2019.
Law
[20] The crux of the Jordan framework is set out at paragraphs 47 and 48:
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.
[21] A useful summary of the process for such an evaluation was set out in in R. v. Coulter, 2016 ONCA 704, by Gillese J.A., at paragraphs 34-40 as follows:
34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
38 Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
[22] In the present case, the delay to the end of the currently scheduled trial, on either the calculations of Ms Thompson or those done by the Crown, exceeds the presumptive ceiling set by Jordan.
Analysis
[23] Ms Thompson’s position is that the calculation of the total delay should run from the date of her arrest May 9, 2019, to the end of the currently scheduled trial June 24, 2022. This is a period of 1,143 days or 37.58 months.
[28] The Crown submits that defence delay amounts to 111 days or 3.65 months reducing the net delay to 1,010 days or 33.21 months. The Crown further submits that the total delay caused by the COVID-19 exceptional circumstance 134 days or 4.41 months. The Crown submits that the remaining delay is 876 days or 28.79 months.
Commencement of the Jordan Timeline
[30] Ms Thompson’s position is that the delay calculation should begin on May 9, 2019 when she was arrested and not May 30, 2019 when the Information was laid.
[33] More recently, the Ontario Court of Appeal addressed this particular issue in R. v. Allison 2022 ONCA 329 wherein there was a seven week period between the arrest and when the Information was sworn. The Court rejected the appellant’s argument that delay should have been calculated from the date of arrest. The reasons given, which apply equally to this case, are set out at paragraphs 41-43:
41 …there is binding authority from the Supreme Court of Canada that addresses this point directly. In R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, the majority of the Supreme Court relied on the text of s. 11(b) of the Charter, which states that “any person charged with an offence . . . has the right to be tried within a reasonable time” [emphasis added], to hold that the calculation of delay starts from the date of the charge rather than the date of the arrest. …
43 …since Jordan, this court has explicitly followed Kalanj in holding that, for the purposes of calculating delay on a s. 11(b) Charter application, time starts to run from the date of the charge and not the date of the arrest. …
[34] I find that the calculation of total delay in this case runs from May 30, 2019 when the Information was sworn to June 24, 2022, the anticipated end of the currently scheduled trial. This is 1,121days. or 36.85 months.
[35] I accept the Crown position, based on R. v. Shaikh, 2019 ONCA 895 and not disputed by Ms Thompson, that the calculation from days to months for the Jordananalysis is done by dividing the total number of days by 30.417 and rounding down to the nearest decimal.
[36] I find therefore that the total delay is 1,121days. or 36.85 months. This is delay is above the Jordan threshold.
Defence Delay
[40] Counsel for Ms Thompson agrees that there was an 11 (b) waiver and that it may be open to the Court to find that the waiver was to December 23, 2020.
[41] The transcript from November 20, 2020 contains the following interchange between the Court and counsel for Ms Thompson:
The Court: ….The Crown has called the evidence they intend to call in order to seek committal. The defence is proposing to call evidence on its – in its own case at the preliminary hearing, one witness and it’s hoped that could be done in a day.
Mr. Guerts: Yes
The Court: Committal is going to be consented to once that’s done and 11(b) is going to be waived by the defence until the next day, until the next day that we, we can get. Is that fair?
Mr. Guerts: Yes
[42] I find that Ms Thompson waived 11(b) from November 20, 2022 until the preliminary hearing continuation date of December 23, 2020, a period of 33 days.
[45] The transcript of December 23, 2020 indicates that the Crown was available January 8, 2021 but counsel for Ms Thompson asked that the matter go to January 22, 2021 as he was retained only for the preliminary hearing and “Ms Thompson would benefit from as much time as possible to make the decision she needs to make and go from there.”
[46] I find there was defence delay from January 8, 2021 to January 22, 201, a period of 14 days.
[49] The transcripts show that on January 22, 2021 Ms Thompson was not ready to set a judicial pre-trial, and the matter was adjourned to the next assignment court on February 5, 2021. I find that this period of 14 days is defence delay.
[51] On February 17, 2021 a judicial pre-trial was held and there was the following exchange between Ms Thompson and the Court:
THE COURT: And we’ll set the date then. Ms. Thompson, I could set a trial date today. I think I’d rather get a little more input and make sure we’re setting enough time. So that’s all right with you?
MARY THOMPSON: Yes, that’s fine.
THE COURT: All right. Ms. Thompson is remanded to February 25th, 2021, at noon and it will be all the same numbers as today, Ms. Thompson. For a self-rep pre-trial it will be on the court record in a sealed file because it’s pre-trial. If there’s nothing further, thank you all.
[52] In the circumstances of this case I find that it was not unreasonable for Ms Thompson to request a judicial pre-trial prior to setting trial dates in the Superior Court, and this conduct does not amount to a waiver of s. 11(b). I do not find that the period between February 5, 2021 and February 25, 2021 was defence delay.
[53] I find the total defence waiver and delay was (33 + 14 + 14) 61 days. [54] The Net delay is therefore (1,121-61) 1,060 days or 34.85 months. [PJM Emphasis]
COVID-19 Exceptional Circumstance
[55] The Crown’s position is that Covid-19 caused the suspension of jury trials scheduled to take place on and between December 20, 2021 to February 7, 2022 and then the suspension of jury trials to be extended to February 28, 2022. The Crown’s position is that the delay caused by this exceptional discrete event, in this case runs from the anticipated end of the first scheduled trial of February 11, 2022 to the anticipated end of the currently scheduled trial date of June 27, 2022 is 134 days or 4.41 months.
[56] Ms Thompson agrees that the delay related to the COVID-19 pandemic is an exceptional circumstance and she agrees that the number of days to be attributed to the exceptional circumstance is 134 days although she would calculate it from January 10-May 24,2022 – the beginning dates for each of the scheduled trials.
[57] Many courts have recognized that the COVID-19 pandemic and its effects on the criminal justice system amounts to an exceptional circumstance as contemplated in Jordan. Different decisions attribute different amounts of time to this exceptional circumstance.
[59] Other cases in the Superior Court have addressed the situation where a trial date scheduled to proceed after the COVID-19 court shutdown had to be adjourned. These cases have recognized the broader impact of the backlog created by the court shutdowns and have treated the time from when the case had to be re-scheduled to the time of the re-scheduled trial as one block period of exceptional circumstance. These cases recognized the extraordinary steps taken by the administration of justice to adapt to the reality of the pandemic and the public health restrictions and to re-schedule cases so that they could be heard with a minimum of delay. These cases also recognize the particular effect of the pandemic on the ability of the courts to proceed with jury trials.
[61] In Khattra, decided December 15, 2020, Woolcombe J. held that the period of time from when the courts shut down in Ontario – March 17, 2020 – to the originally scheduled trial date of May 11, 2020, was to be included in the net delay, whereas delay after the original trial date was part of the exceptional circumstances to be deducted from net delay.
[62] In R. v. Brooks 2022 ONSC 115, decided in January 2022, Copeland J. held that, although the original trial date was in May 2020, the time from mid-March 2020 when the COVID-19 court shutdown was declared should be included in the exceptional circumstance deduction. She held at paragraph 25:
To exclude the period of mid-March 2020 to May 2020 has the effect of excluding from the calculation the delay impacting the entire court system during this period and the impacting the resetting of trial dates of all of the trials which could not proceed in that time period.
[65] Other cases in the Ontario Court of Justice, where the Jordan presumptive ceiling is 18 months and jury trials are not in play, have taken a different approach.
[68] While I understand the approach taken in Hyacinthe and in Brooks, I prefer the position taken in Khattra which recognized that in the circumstance where the trial (or preliminary hearing) date had been set but then had to be adjourned due to COVID-19 restrictions, the period of exceptional circumstance attributable to the COVID-19 pandemic should begin at the original trial (or preliminary hearing) date. This approach recognizes delay that existed before the particular pandemic restrictions took effect.
[69] I find therefore that the COVID-19 exceptional circumstance in this case encompassing either the period from the beginning of the first trial to the beginning of the re-scheduled trial, or from the anticipated end of the first trial to the anticipated end of the re-scheduled trial is 134 days.
[70] I find that the Remaining delay is therefore (1,060-134) 926 days or 30.44 months.
Whether the Remaining Delay is Unreasonable
[74] I note that in Ms Thompson’s police interview on May 9, 2019 the investigating officer said to her: “But in this office, there’s such, um, a backlog of, of fraud related offences that we’re behind by like a year. So it takes us a year to catch up, which is why you’re probably like why is this kind of happening now?”
[75] This pre-charge delay left Ms Thompson in a bit of a no-man’s land wherein she did not know whether she would be criminally charged. Because of this, had the remaining delay calculation fallen just below the presumptive ceiling, I might well have found that the delay in this case was nonetheless unreasonable.
[76] In all of the circumstances, I find that Ms Thompson has shown that the delay to trial in her case is unreasonable; it violates Ms Thompson’s s. 11 (b) Charter rights and her application for stay pursuant to s. 24 (1) is granted.
Qualifying and Challenging Expert Evidence
By Eric V. Gottardi, Jennifer A. MacLellan, Michael Lacy & Robin Flumerfelt
