R. v. Randawa, 2017 ONCJ 363

ONTARIO COURT OF JUSTICE CITATION: R. v. Randawa , 2017 ONCJ 363 DATE: 2017 06 02 COURT FILE No.: Brampton 3111 998 16 16073 BETWEEN: HER MAJESTY THE QUEEN — AND — GURMEET RANDAWA Before Justice G.P. Renwick Heard on 29 May 2017 Reasons for Judgment released on 02 June 2017 D. Quayat................................... counsel for the Public Prosecution Service of Canada The defendant, Gurmeet Randawa....................................................... on his own behalf RENWICK J.: INTRODUCTION [ 1 ] The defendant, Mr. Gurmeet Randawa, is charged with possession of cocaine, a

Schedule I substance, contrary to the Controlled Drugs and Substances Act . [ 2 ] This matter began as a guilty plea. However, during the plea inquiry, I was not satisfied that the defendant would admit that he was knowingly in possession of cocaine. I advised the defendant that I could not accept a guilty plea from someone who would not admit the facts necessary to support a finding of guilt and the defendant should consider pleading not guilty and having a trial. [ 3 ] Upon his arraignment, the defendant pleaded not guilty. The trial was extremely short.

The prosecutor called one police witness and filed one exhibit in this case. At the conclusion of the evidence in chief, the defendant chose not to cross-examine the officer. The defendant did not testify, lead any evidence on his behalf, nor did he make any closing submissions. [ 4 ] The only issue for my determination is whether or not the prosecution has proven beyond a reasonable doubt that the defendant was in possession of cocaine. ANALYSIS [ 5 ] In order to find Mr. Randawa guilty of this offence I have to be satisfied beyond a reasonable doubt of the following three things: i.

The defendant possessed the substance found in his pocket by the police; ii. The substance found by the police is cocaine; and

iii. The defendant knew that the substance was cocaine. The Evidence [ 6 ] Constable Nathan Ball testified as the only witness in this matter. The officer recounted how he had observed the defendant and another man standing in the tunnel at the G.O. Train station located at 27 Church Street, Brampton.

Based on his knowledge that individuals sometimes have open liquor in this location, the officer decided to walk toward the men to investigate. [ 7 ] As Constable Ball approached the two men, the male who was later identified as Mark Smiley began to walk to the left side of the tunnel toward the end where the officer entered. At the same time, the defendant appeared to walk to the right side of the tunnel. The officer observed that Mr. Smiley had a beer can and a lighter in his hands, but he did not recall seeing anything in the defendant’s hands.

As he approached where the men had been standing, the officer found a cigarette pack resting on top of an electrical panel and inside the cigarette pack he found an item wrapped in a piece of paper. Inside the paper was a rock-like substance which the officer believed from his experience was crack cocaine. [ 8 ] Constable Ball advised both men that they were under arrest. He took custody of the defendant and another police officer behind him secured Mr. Smiley.

During a search of the front pants pockets of the defendant, the officer found a small “dime bag” containing a rock-like substance, which the officer also believed was cocaine. [ 9 ] After releasing Mr. Randawa from the scene, Constable Ball took the evidence back to the police station and weighed and documented it. The substance found in the cigarette pack weighed 0.05g, while the item found on the defendant weighed 0.2g.

The officer testified about the process for sending the items for analysis and the results. [ 10 ] Exhibit one certified that the substance found in the defendant’s pocket was analysed by an analyst at Health Canada and the substance was cocaine. The prosecution established that proper notice of its intention to rely upon certificate evidence had been served upon Mr. Randawa three weeks earlier, along with a copy of the certificate, and this was not disputed by the defendant. [ 11 ] There was no evidence lead by the defendant nor was any contest made of the prosecution’s case.

Findings of Fact [ 12 ] The evidence easily establishes that the defendant was in physical possession of the substance which is proven to be cocaine which was found by the police in his front pants pocket.

There is no reason to doubt any of the evidence of Constable Ball and I do not find any fault in his investigation, or the detention, arrest, search and seizure, or handling of the evidence in this case. [ 13 ] Given that the officer never observed the defendant any closer than five feet from the cigarette pack which contained a small amount of cocaine, and that there was another individual present (who was in possession of a lighter), I am not prepared to find that the defendant was in possession of the cocaine found in the abandoned cigarette pack.

The prosecutor, quite fairly, did not press for a conviction of the defendant on the basis of possession of this cocaine, and I have a reasonable doubt about whether or not Mr. Randawa was actually in possession of this cocaine, in any event. [ 14 ] I have considered all of the evidence in this matter. I accept the evidence of Constable Ball as truthful and accurate in all respects.

Nonetheless, out of an abundance of caution, and not because I am compelled in law to do so, I feel bound to consider whether the defendant’s unsworn statement upon his initial attempted guilty plea (“I was drunk and I didn’t have that thing on me”) leaves me in a state of reasonable doubt about his involvement in the offence charged. [ 15 ] In considering the unsworn exculpatory statement of the defendant, I have disabused myself of the context of the making of that statement (an attempted guilty plea), and I am prepared to measure this statement for any possible probative value in relation to the evidence received during the trial.

Given that the defendant was unrepresented during his trial, I am not prepared to simply disregard his statement. Despite my cautions to the defendant about what is and what is not evidence before the start of the trial, I am sensitive to the defendant’s lack of knowledge in defending himself. [ 16 ] I am prepared to treat the defendant’s pre-plea statement as an untested exculpatory statement. Again, I acknowledge that the law does not require me to apply any weight to this utterance.

And although the defendant’s claim was not tested by cross-examination, I am prepared to examine whether it leaves me with a reasonable doubt of the defendant’s guilt in this matter. [ 17 ] Despite the fact that the defendant may have been quite earnest when he made the in-court statement, I am unable to accept it as truthful for the following reasons, applied cumulatively: 1.

The defendant’s statement does not accord with common sense; cocaine is a commodity; it is bought and sold or traded; it has a monetary value as well as an intrinsic value to the person who possesses it and might want to consume it for recreational purposes or trade it for another commodity or currency; generally, because of its value, people do not haphazardly come into possession of cocaine; 2. People do not usually conceal their drugs in the clothing worn by others; to do so, risks discovery of the drug, possible loss of the drug, or even possible investigation and detection by the authorities; 3.

At some point before the officer found it, the cocaine was put into the defendant’s front pants pocket; I must find that it was either put there without Mr. Randawa’s knowledge, or, it was put there when he was too intoxicated to appreciate what it was; I must also accept that at no time after the cocaine was put into his pocket was it discovered by the defendant, or, if it was, he was too intoxicated to appreciate what it was, if I accept the defendant’s version of events; 4. Because the defendant’s statement is unsworn and it was not subjected to cross-examination, I have no way to ascertain the veracity of

the defendant’s statement; and 5. Because the defendant was not cross-examined, there is no way to test his level of intoxication, his memory, or any other factor affecting his knowledge of the cocaine found in his pocket. [1] [ 18 ] As I am unable to conclude that the defendant’s in-court statement is true, I am unable to accept it. If I had accepted this statement as true, I would acquit the defendant.

However, this is not dispositive of this case. [ 19 ] I must nonetheless consider whether I can reject the defendant’s statement as false and if so, whether it leaves me with a reasonable doubt about the defendant’s guilt, and lastly, whether the evidence I do accept satisfies me beyond a reasonable doubt of the defendant’s guilt in this matter. [ 20 ] Neither party asked Constable Ball any questions, nor did he volunteer any evidence, about the level of sobriety of the defendant.

However, the officer seemed to provide a running narrative of what he saw and what he did and at no time did he describe anything that causes me to think that the defendant was so extremely inebriated that he was not aware of what was in his front pants pocket. Again, relying on common sense, it is difficult to imagine someone having no knowledge about something valuable and found in a readily accessible part of one’s own clothing, while it was being worn. On this basis, I reject the defendant’s utterance that he had no knowledge of the cocaine in his pocket. [ 21 ] Again, this is not the end of the matter.

I do not find that the defendant’s false claim is positive evidence of guilt. [ 22 ] I must also consider whether the defendant’s statement, which I reject as untrue, leaves me with a reasonable doubt about his guilt. It is a bald assertion, uncorroborated by any other evidence. The statement is not particularly logical, because intoxication does not necessarily negate knowledge of one’s possessions. There is nothing even minimally compelling about the statement to rebut the common sense inference that people generally know what is in their pockets.

I find that the defendant’s pre-trial statement does not raise a reasonable doubt about his guilt. [ 23 ] Lastly, I must consider whether on the basis of the evidence I accept I am satisfied of the defendant’s guilt beyond a reasonable doubt. In light of all of the evidence, testimonial and documentary, the unsworn statement, and after a full consideration of the presumption of innocence and the immutable burden on the prosecution, I am satisfied that the defendant knowingly possessed cocaine on 20 November 2016.

The inference that the defendant knew about the cocaine in his front pants pocket is irresistible in this case, and I accept it. In consideration of all of the evidence and the unsworn statement made before this trial, I am not left in any reasonable doubt about the defendant’s state of mind (knowledge of possession of cocaine) or his actual possession of cocaine. [ 24 ] I have also considered whether the defendant’s unsworn statement raises the defence of intoxication to exculpate him of this charge.

Intoxication can be a defence to negate the prosecution’s proof of a guilty state of mind: in this case, the knowing possession of cocaine, but there must be at least an air of reality to raise a defence of intoxication. In this proceeding, there was a complete dearth of evidence with which to consider the viability of this defence, and accordingly, I cannot find that it applies.

CONCLUSION [ 25 ] On all of the evidence I accept, and in light of the conclusions I have drawn about the unsworn statement made by the defendant, I am satisfied beyond a reasonable doubt that Gurmeet Randawa possessed cocaine, and I find him guilty as charged. [ 26 ] I will now hear from both the prosecutor and Mr. Randawa as to the timing of the sentencing hearing. Released: 02 June 2017 Justice G. Paul Renwick