R. v. Betton, 2015 ONCJ 823

CITATION: R. v. Betton , 2015 ONCJ 823 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN -vs- 5 ANDRE BETTON

********** BEFORE THE HONOURABLE MADAM JUSTICE M.T. DEVLIN 10 ON JUNE 10, 2015 COURTROOM #402 AT OSHAWA, ONTARIO 15 ********** R U L I N G O N C O M M I T T A L 20 PRELIMINARY INQUIRY ********** ** PUBLICATION BAN IN EFFECT ** 25 APPEARANCES : J. Bruce, Esq. Counsel for the Federal Crown T. MacDonald, Esq. Counsel for the Accused 30

ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S 5 W I T N E S S E S Examination Cross- Re- WITNESSES in-Chief Examination Examination

10 15 E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE 20 LEGEND [ sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error 25 (ph) – Indicates preceding word has been spelled phonetically 30

Ruling on Committal. WEDNESDAY, JUNE 10, 2015 RULING ON COMMITTAL : (Orally, Devlin J) 5 This is the ruling on committal in the case of Andre Betton. Mr. Betton is charged with two offences, possession for the purpose of trafficking and possession of a controlled substance. The charges stem from an incident which occurred on 10 November 14 th , 2013, which resulted in baggies of crack cocaine and cocaine being discovered in the front console of the car Mr.

Betton was driving. The Crown relied on the evidence of Constables Mintz and Hoover. The defence did not call any 15 evidence. The main issue is whether the Crown has proven the two requirements of possession, namely knowledge and control. The defenceproperly conceded that 20 the facts establish control over the hidden drugs. Therefore, the issue is whether the Crown has established a prima facie case that Mr.Betton had knowledge of the hidden drugs. 25 I turn now to the legal analysis.

The test for committal was established by the Supreme Court of Canada in its 1977 decision of theUnited States of America and Shephard (SCC), [1977] 2 S.C.R. 1067 as 30 follows: “Whether there is some evidence upon which a jury properly instructed and acting judicially

Ruling on Committal. could register a conviction.” Counsel agree that the Shephard test involves a low threshold. Counsel provided me with a number of helpful cases 5 from the Ontario Court of Appeal, the Superior Court of Justice, and the Ontario Court Justice: R. v. Collins [2003] O.J. No. 820; R. v. Freeman [2006] O.J. No. 1021; R. v. Grizzle [2013] O.J. No. 6184; R. v. Nakhla [2015] O.J. No. 1732; R. v. 10 Palmer, an unreported decision of Justice McLeod, Ontario Court of Justice, November 30th, 2010; R. v. S.D. (ON CA), [1974] O.J. No. 535; R. v. Sappleton [2006] O.J. No. 5718; R. v. Turner 2012 ONCA 570 ,[2012] O.J. No. 4088. These cases support the principle that where there

15 is no direct evidence, (such as the case before me), the preliminary hearing judge must engage in a limited weighing of the circumstantial evidence. (See R. v. Turner supra which citestwo Supreme Court of Canada decisions of Chief Justice 20 McLachlin in dissent in R. v. Charemski [1988] 1 S.C.R. 679, and writing for the majority in R. v. Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828). I will now apply these legalprinciples to the facts of the case before me. 25 At approximately 2:50 a.m., on November 14th, 2013, Mr. Betton was stopped by the police for speeding.

Constable Mintz saw Mr.Betton’s hands near the 30 centre console, and for a moment, he seemed to be clenching an item in his hands. Once Mr. Betton exitedthe vehicle, the officers found a scale with

Ruling on Committal. white residue on the driver’s seat, near the console. They, therefore, arrested Mr. Betton for possession of a controlled substance. 5 A search of the vehicle post arrest uncovered a black satin bag and a small scale with residue inside the console. Inside the black satin bag were three baggies as follows: number one, 3.8 grams of crack cocaine; number two, 20.5 grams of 10 crack cocaine; number three, 5.3 grams of powder cocaine. Two wallets with identification for Mr. Betton were found on the front passenger seat. Two cell phones were also found, although it is unclear where they were found. 15

The Crown submits that knowledge of the drugs hidden in the console can be inferred because Mr. Betton was the lone occupant of the vehicle, and a scale with white residue was found in plain view on 20 the driver’s seat beside the console. The defence disagrees. It submits that even if knowledge could be reasonably inferred, it is not the only reasonable inference, and therefore there 25 is insufficient evidence to support committal. I agree with the defence. There is no evidence who owned the vehicle Mr. Betton was driving, nor how 30 long he had been driving prior to the police spotting him, and stopping him within a two minute

interval. There was also no evidence regarding the residue on the large scale found in plain view. I therefore conclude that it is not reasonable, 5 based on the facts of this case, to infer that Mr. Betton had knowledge of the hidden drugs, although I am suspicious. Even if I am wrong, and the inference of knowledge could properly be made, I would still conclude that because it is not the 10 only reasonable inference, the test for committal has not been made out. I therefore discharge Mr. Betton on both counts before the court. ****************** 15

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5 FORM 2 CERTIFICATE OF TRANSCRIPT SUBSECTION 5(2) 10 EVIDENCE ACT

I, JULIE COUSSONS , CERTIFY THAT THIS DOCUMENT IS A TRUE AND ACCURATE TRANSCRIPT OF THE RECORDING IN THE MATTER OF R. v. ANDRE BETTON , IN THE ONTARIO COURT OF JUSTICE, HELD AT 150 BOND 15 STREET EAST, OSHAWA, ONTARIO, AND TAKEN FROM RECORDING #2811-402-20150610-090500_10_DEVLINM , WHICH HAS BEEN CERTIFIED IN FORM 1 BY BETTY MIDGLEY. .................................. 20 JULIE COUSSONS - CCR/ACT CERTIFIED COURT REPORTER AUTHORIZED COURT TRANSCRIPTIONIST 25 30