Ontario Criminal

Drug Offences

Direct and circumstantial evidence fell well short of establishing requisite knowledge

Accused charged with one count of possession of crack cocaine for purpose of trafficking, one count of possession of cannabis marijuana, and with possessing proceeds of crime under $5,000. Issue for trial was whether accused possessed cocaine and marijuana at time of his arrest and whether he had knowledge and control of drugs found in his apartment. Officers testified that in pursuing informant’s tip they observed 12 short meetings at accused’s apartment building lasting one half hour or less except for one meeting, when accused was seen having BBQ on his balcony for two friends. All short visits happened when accused was at home people arrived, entered without knocking, and left looking at their hands, and gave indicia of drug transactions. Accused claimed that marijuana, except for small quantity, was his own but that exotic dancer who lived with him was crack cocaine addict crack cocaine found was hers and he denied being trafficker of either crack cocaine marijuana. Officers seized 378.3 grams of marijuana in accused’s apartment; accused admitted that all marijuana found in his apartment was his except for 2.2 grams of it. Accused testified that he was heavy smoker of marijuana and that he had just purchased larger amount than usual due to unusually good deal friend had offered him. Accused guilty of simple possession of marijuana only. Court agreed that accused had control of apartment but could not ignore that he was sharing his apartment with exotic dancer addicted to cocaine. One quantity of crack cocaine, one to two grams, was small and not likely to be quantity for trafficking but for personal use; other 5.2 grams were found in shoe box in bedroom where exotic dancer lived as well. Court found that lack of packaging material for marijuana was significant. Accused testified in forthright manner without hesitating and generally gave answers that were plausible. Messy apartment description fit in with typical lifestyle of construction worker having open relationship with exotic dancer, and could have accounted for lack of rolling papers found. Even in combination, direct and circumstantial evidence relevant to issue of knowledge fell well short of establishing requisite knowledge.

R. v. Ndalo (Nov. 1, 2012, Ont. S.C.J., Lalonde J., File No. 10-G8643) 104 W.C.B. (2d) 836.

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