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CONTROLLED DRUGS AND SUBSTANCES - Constructive possession

Monday, May 03, 2021 @ 9:34 AM  


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Appeal by the accused from convictions for trafficking methamphetamine, possession of heroin and numerous breaches of her recognizance for being in possession of cellular phones, a knife and drugs. The appellant asked a Subway employee to help her gain entry into her locked vehicle. The employee noticed damage to the ignition. Believing the vehicle was stolen, he contacted police. Police found the methamphetamine, alcohol and a knife in plain view. Also found in the vehicle were a scale, police scanner, eight cellular phones and small plastic bags. There were no documents identifying the appellant as owner or occupant of the vehicle and the Crown did not tender evidence of the vehicle registration. There was an identification document found belonging to another woman. No keys were found in the vehicle or in the possession of the appellant. The Crown did not conduct a voir dire regarding voluntariness of the appellant’s statements to the police. The Crown also failed to have the police enter into evidence the results of the licence plate search; however, defence did not object to the police testifying to the results of this search as a narrative exception to what was otherwise hearsay. The trial judge found the appellant had constructive possession of the vehicle and its entire contents. The expert evidence was that the 14.27 grams of methamphetamine on its own would not establish trafficking. The trial judge accepted the expert evidence that the drugs along with the other items established possession for the purpose of trafficking.

HELD: Appeal allowed. The appellant was acquitted of the heroin charge and the breaches for possession of a mobile device. The trafficking conviction was varied to possession. The trial judge failed to disabuse himself of the inadmissible evidence given by the police in drawing his inference of guilt. The Subway employee’s evidence along with the admissible police evidence did not establish the appellant’s knowledge of the contents of the entire vehicle. The indicia of knowledge, including proximity, access and visibility of the contents were not established. At most, the evidence established current use of the vehicle and possession of items within plain view, the knife, the alcohol and the 14.27-gram bag of methamphetamine. The court also had concerns about the cavalier way that narrative or hearsay evidence was led by the Crown and appeared to be accepted by the defence and trial judge without much consideration. The Crown should have entered into a voir dire to establish the voluntariness of the appellant’s statements to the police and should have entered into evidence the certificate of the registered owner of the vehicle licence plate. The trial judge in his analysis on constructive possession did not grapple with the reasonable inference inconsistent with guilt that was raised squarely by the evidence that the vehicle was stolen, and the appellant was attempting to get back into it. No reasonable trier of fact, acting judicially, could conclude on this evidence that the Crown established the appellant’s knowledge of the contents of the vehicle other than those items in plain view beyond a reasonable doubt. There were gaps in the evidence that could not be filled with narrative, hearsay or other inadmissible statements and other inferences available inconsistent with guilt. The expert opinion on trafficking was contingent on the existence of the other items, which were not established to be within the appellant’s constructive possession. The possession for the purpose of trafficking conviction could not stand. As the Crown did not establish that the appellant was in constructive possession of the contents of the entire vehicle, the convictions for the breaches of recognizance for being in possession of cellular phones could not stand either.

R. v. Stauth, [2021] A.J. No. 319, Alberta Court of Appeal, F.F. Slatter, B.L. Veldhuis and R. Khullar JJ.A., March 8, 2021. Digest No. TLD-May32021003