Accused charged with possession of cocaine for purpose of trafficking. Accused signed tenancy agreement for apartment unit as sole occupant. For two weeks following signing of agreement, repairs were made to unit. Number of workers had access to unit, and landlord was not present during entirety of time that workers were inside unit. When landlord entered apartment with worker who was going to repair fridge, he found empty BlackBerry box located on shelf in freezer and 75 dime bags of cocaine inside. Accused testified that she did rent apartment and that she had moved certain personal items into it on day of discovery. Accused denied that she had any knowledge or control over cocaine located in freezer. Accused acquitted. Accused’s evidence was not rejected and left court with reasonable doubt. Accused did not hesitate in response to questions and was logical in her explanation of sequence of events. There were no inconsistencies in accused’s evidence and no meaningful contradictions with other evidence. Whether or not accused stayed overnight in unit was of no moment, as she had plenty of opportunity to store cocaine in freezer if she was inclined to do so. There was no evidence that groceries had been purchased and placed in freezer portion of fridge to demonstrate that accused had accessed it. It was not unusual that accused testified that she did not open freezer to determine if it was working, as she was in process of moving in to unit. Accused’s denial that she had either knowledge or control over contents of BlackBerry box was consistent with her conduct. It defied logic that accused would have left contraband, all on its own, in fridge knowing that it would have been observed by appliance repair person who was attending to seal it. Accused did not hesitate in turning over her key to landlord, and there was no attempt to return to unit to remove contraband from freezer, as one might have expected if accused knew it was there. Found during search were four BlackBerry boxes and two BlackBerry phones, but no other evidence that would have led to inference that accused was involved in drug trafficking was found. There were number of people who had access to unit from date that accused agreed to rent unit to date of discovery of cocaine. While it was true that accused was often in unit where cocaine was found, there was no evidence that she knew that she had it in her physical possession.
R. v. Mitchell (Oct. 1, 2014, Ont. S.C.J., Kelly J., File No. CR/13/90000/6410000) 116 W.C.B. (2d) 378.