r v. Jesse, 2011 QCCQ 12997

R. c. Silva 2011 QCCQ 12997 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-052339-113 DATE: 27 October 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Jesse SILVA Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr.

Silva is charged with one count of simple possession of marijuana. [1] Following a routine stop of the car driven by Mr. Silva, Constable Cicalo observed in plain view on the arm rest in the back seat a clear plastic bag that appeared to contain traces of a green vegetable matter. He opened it, detected what he thought was marijuana and then arrested Mr. Silva and his two passengers. He also arrested the two passengers for breach of bail conditions, which included a prohibition relating to marijuana pending the conclusion of proceedings against them for possession of marijuana.

There followed further searches of all three persons and of the car. Nothing was found on their persons but under the front passenger seat Constable Cicalo found and seized a small transparent bag containing 2 grams of marijuana. The validity of the stop, searches and seizures is not contested. [ 2 ] The only question is whether the accused had actual or constructive possession of either of the bags of marijuana. While it is clear that Mr. Silva had control of his car, there is no evidence that Mr. Silva physically manipulated either of the seized specimens with knowledge of their contents.

Thus the only question to resolve is whether Mr. Silva knew [2] of the presence of the two bags, and the nature of their contents, and assumed a measure of control over them by consenting to their presence in the car. [3] [ 3 ] Mr. Silva testified that as he was leaving a birthday party two acquaintances asked if he could give them a lift in his car. He agreed and the three spent some time together. There is no evidence that any of them was intoxicated in some manner. There was no odour of marijuana, freshly burnt or otherwise, in the car at the time of the stop. Mr.

Silva says that he does not smoke tobacco or marijuana and does not permit smoking of anything by others in his car. [4] In his own defence he testified that he did not know of the presence of the bags or a fortiori of their contents. This evidence is not contradicted. While I might have some doubts about the truth of this claim, I cannot conclude beyond reasonable doubt that Mr. Silva knew that either of the bags was in the car and that he knew what they contained. For this reason I cannot conclude that possession has been proved to the necessary standard of persuasion. FOR THESE REASONS Mr.

Silva is acquitted on the sole charge in the information. ____________________________________ PATRICK HEALY, J. C.Q. M e France Duhamel For the Prosecutor M e Eddy Menard For the Accused Date of hearing: 14 June 2011