Ruling

1 H.K. ATWOOD J. (orally):-- The law in issue on this preliminary inquiry as to committal is absolutely straightforward. It is whether the Crown has produced some evidence of knowledge or knowledge and control of the various contraband items that form the subject matter of the charges before the court. It is certainly not disputed that they are contraband. It is not disputed that they form exactly the substances and object that are set out in the several counts on the information. It is simply, as I have stated, whether or not the Crown has demonstrated some evidence of knowledge on the part of either Sappleton or some evidence of knowledge and control on the part of either Sappleton. In my view they have not.

2 The cases cited by the defence are useful, at least as benchmarks of what the Courts of Appeal of primarily Ontario and British Columbia have taken to be insufficient evidence for committal on a preliminary inquiry. I say that, because I accept defence counsel's submissions to me that the fact the Courts of Appeal have quashed convictions and entered acquittals upon an appeal is the same test as that set out in Arcuri.

3 The test, of course, as it is always set out in The United States of America and Shephard, [1977] 2 S.C.R. 1067, is whether there is some evidence upon which a jury properly instructed and acting judicially could register a conviction. It is certainly my view that the Courts of Appeal in several of the cases I will refer to very briefly have said, in circumstances stronger for the Crown than in the matter before me, there is not.

4 Those cases which I think have set out stronger fact situations for the Crown than are present in the matter for me and I will turn to those aspects in a moment, are R. v. Freeman, [2006] O.J. No. 1021, R. v. Gray, R. v. Douglas, R. v. Cherry, R. v. J.Y., [1995] B.C.J. No. 2904, and R. v. Anderson. In some of those cases the circumstances are such that they are either similar in some aspects to the case at bar, I note the numbers of objects in Gray for example, with drugs found at two locations, cash that apparently is associated with crime at two locations and scales or are in relatively confined areas to which the accused has access, for example, the communal use of the car in Freeman with a gun under the seat and apparently evidence that the most recent user on the day in question had been Freeman himself. That perhaps reached its zenith in R. v. J.Y., where a cigarette pack on the seat occupied by the defendant, with evidence that the defendant had handled that cigarette pack, was found to be insufficient to send the matter forward. Again, I note the equivalency between unreasonable verdict and entry of acquittal and the test in Arcuri, where hidden inside the cigarette pack, a relatively small object, with evidence directly connecting by locus at least with J.Y., both heroin and cocaine.

5 The facts before me that could be used by the Crown to demonstrate a circumstantial case are, in my view, as follows. First, Gregory Sappleton running from the scene at the time that officers attend. In my view, this evidence is simply of no worth or any relevance to the matter before me and cannot be described as post offence conduct. It is quite clear that he is arrested by arresting officers for attempt murder and while that may have some connection with the offences at bar, none of that has been made out. It is certainly, in my view, clear that a person may flee for reasons other than guilt as to any crime, but where there in the possibility of flight for crimes unconnected with the offences at bar, in my view, it is improper to derive anything from that flight, certainly not proper to derive any thoughts with regard to consciousness of guilt.

6 Two, the fact that there are drugs found at a number of locations within the home. Those drugs are in all respects but one hidden and some of those drugs are hidden well. I am going to add to that the .38 Special calibre snub nosed revolver hidden in the heating vent in the basement and again note that it is extremely well hidden. The only drugs that are in plain view is the 5.01 grams of marijuana found in a room that has only evidence of occupation by a young female. It is the opinion of a woman Detective that searched the room that the posters, the clothes and I had the impression, cosmetics and ectrement established the room as being occupied by a young female.

7 Certainly I accept Mr. Canton's suggestion that there can be circumstances in which the plethora of plain view objects establish that the persons in the home would be in knowledge of those objects.

8 Here, where the only plain view object is the 5.01 grams, not a tremendously large amount and in a room occupied by a female, with no evidence of access by either of the defendants, again, I would say that that point is far weaker for the Crown than the evidence in cases such as Freeman and R. v. J.Y.

9 Three, the fact that there is some evidence that both Gregory Sappleton and Adrian Sappleton have connection with the home. In my view, the statements made to officers by both establish a connection with the home. I disagree with counsel, at least to the extent that they submit that those statements do not. Ownership, the ability to go in there as of right and, of course, the statements by Gregory Sappleton in the police car, all establish sufficient connection that in my view, residency is within the purview of the jury and not for me. But, of course, that does not end the matter.

10 Residency is not enough, knowledge is a requirement.

11 The identification of Gregory and Adrian Sappleton do not, in my view, assist the Crown, as well, other than to further establish a connection with the home and possible residency. Again, I note that the identification is found in a room that has no contraband within it. In addition, as I have already noted, the test is not residency, but knowledge. Certainly residency in certain circumstances can go far to establishing knowledge, but not in my view in this case. It establishes only the lowest level of involvement, not what is required.

12 Next, the amount of drugs, that is the number of drugs, again, even taken in conjunction with the pistol in the basement, that number does not assist the Crown. A nice phrase from Mr. Rippell, zero added to zero added to zero is still zero. All of the drugs and the gun are well hidden and it is only the 5.01 grams in bedroom number two occupied by the young woman that is in plain view. There is nothing beyond Freeman or beyond J.Y. that would establish knowledge in these circumstances. I agree with Mr. Rippell specifically, that all of these zeros added up do not assist the Crown.

13 I would say the following, if I am in error on the issue of knowledge, I accept that there is some evidence on possession for the purposes of trafficking marijuana and possession for the purposes of trafficking cocaine. I would think that any jury may have doubts about the logical chain derived in order to obtain possession for the purposes of cocaine, but there is certainly evidence that is present before the court.

14 In addition, it is, I think, clear, that the pistol is as described and it was conceded by counsel for the purposes of this preliminary that it was a functioning firearm, without the need to cross-exam the C.F.S. specialist.

15 Again, as I say, the only issue before me is knowledge. I have indicated why, in my view, all of the facts referred to by the Crown, do not in my view amount to any evidence with regard to knowledge to either brother, having excluded the statement by Gregory Sappleton.

16 Having said that, in my view, a jury properly instructed and acting judicially, could not enter a conviction. There is simply no evidence on the point to put it another way and they will be discharged.
 

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