R. v. Saunders, 2014 NLCA 39

Date: 201410 29 Docket: 14/07 Citation: R. v. Saunders , 2014 NLCA 39 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DWIGHT SAUNDERS APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: September 22, 2014 Judgment Rendered: October 29, 2014 Reasons for Judgment by Hoegg J.A. Concurred in by Welsh J.A. Separate Concurring Reasons by Rowe J. A. Counsel for the Appellant: Self Represented Counsel for the Respondent: Iain Hollett

Hoegg J.A.: Introduction [ 1 ] Dwight Saunders was convicted and sentenced after pleading guilty to three offences arising from an incident which took place on December 9, 2013. The first charge alleged that he possessed a 12 gauge shotgun and a 303 rifle while prohibited from doing so. The second charge alleged that he “used, carried, handled or stored” a 12 gauge shotgun and a 303 rifle in a careless manner and without precautions for other persons. The third charge alleged that he breached his probation.

In addition to imposing a period of incarceration, the sentencing judge made several ancillary orders, of which one was an order for forfeiture of a 12-gauge shotgun and a 303 rifle that had been seized by the police in the course of their investigation. [ 2 ] On February 3, 2014, Mr. Saunders appealed the forfeiture of the 303 rifle to this Court, arguing that it was a family heirloom and that it had no connection to the incident leading to the charges. In response to inquiry from this Court, Mr. Saunders advised that he was not appealing his convictions or any other aspect of his sentence.

Leave to Appeal [ 3 ] Mr. Saunders is appealing the forfeiture of a firearm which by his guilty pleas he has admitted was involved in offences committed by him. The forfeiture of property so involved, in my view, forms part of Mr. Saunders’ sentence for the purposes of an appeal under paragraph 675(1) (

b) of the Criminal Code (see R. v. Montague , 2014 ONCA 439 , 120 O.R. (3d) 401 at para. 27 ). As such, his appeal requires the leave of this Court as stipulated in paragraph 675(1) (b). [ 4 ] In R. v. Murphy , 2011 NLCA 16 , 304 Nfld. & P.E.I.R. 266 at para. 8 , this Court described the test for leave to appeal sentence to be “whether the appeal is ‘frivolous in the sense of having no arguable basis or sufficient merit’ ”. Because Mr.

Saunders’ appeal raises a genuine issue about the property rights of a third party in the context of a forfeiture order made pursuant to criminal charges not involving that third party, I am satisfied that Mr. Saunders’ appeal is not “frivolous in the sense of having no arguable basis or sufficient merit”. Accordingly, I would grant leave for Mr. Saunders to appeal. Background [ 5 ] The facts tendered in support of Mr. Saunders’ guilty pleas are that he left home the morning of December 9, 2013 with his girlfriend to go to an appointment.

En route, he told her that he had to go back home because he had forgotten something. He returned home and saw his mother when he entered the house. He went upstairs to his parents’ bedroom, and then went down to the basement from where he emerged with a shotgun. He threatened his mother that he would shoot himself with the loaded shotgun he was holding unless his mother gave him money. When his mother told him that she did not have her bank card or money to give him, Mr. Saunders put the gun to his head and told her that she had half an hour to get the money for him or he would blow his head off.

His mother then left the house and called the police. When the police arrived there was a two-hour standoff before Mr. Saunders surrendered. At the time, Mr. Saunders was subject to two firearms and ammunition prohibition orders. [ 6 ] The shotgun seized by the police and actually used by Mr. Saunders belonged to his brother, David, who was living in Alberta at the time. According to their mother it had been stored in a case in the basement of their home. The seized 303 rifle was found by police “locked in [the parents’] bedroom”. It belonged to Mr. Saunders’ father, Paul Holloway, who was at work that day. Mr.

Saunders testified at his sentencing hearing. He said he was desperate for money to feed his cocaine addiction and that in December 2013 his habit was costing him “$300 or more” per day. He explained that he had been receiving treatment and counselling and that he had been doing well for almost two years but that he “had let [his] guard down and … fell back into it” in the months previous to the incident. [ 7 ] Mr. Saunders pleaded guilty to the following charges: (

i) possessing a 12-gauge shotgun and a 303 rifle while prohibited contrary to subsection 117.01(1) - (3) of the Criminal Code , R.S.C. 1985, c. C-46; (ii) carelessly using, carrying, handling or storing of a 12-gauge shotgun and 303 rifle contrary to subsections 86(1) - (3) of the Criminal Code ; and (iii) breaching his probation contrary to subsection 733.1(1) of the Criminal Code . By his guilty pleas Mr. Saunders admitted to the essential elements of each of these offences. Before convicting him, the trial judge confirmed that Mr. Saunders’ counsel had canvassed the provisions of

section 606 of the Criminal Code with Mr. Saunders. [ 8 ] In this regard I note that although Mr. Saunders alleges in his appeal that the 303 rifle had no connection to the charges, he did not challenge the references to the 303 rifle in the charges when he entered his guilty pleas or at the time of his sentence, and he has not appealed his convictions. There was no specific adjudication on the references to the 303 rifle in the charges because Mr. Saunders admitted the offences as charged. It is worth observing that the facts tendered by the Crown in support of Mr.

Saunders’ use of the shotgun on their own support his guilty pleas to all of the charges; and, it is at least arguable that the facts respecting the 303 rifle could independently support convictions. Had there been a trial, the trial judge, after hearing evidence and/or argument respecting whether Mr. Saunders possessed in law or carelessly stored the 303 rifle, could have excised the references to the 303 rifle from the charges in the Information if he or she deemed it appropriate.

Whether or not the references to the 303 rifle would have been exised from the charges, the integrity of the charges would be intact due to the evidence respecting the shotgun. Accordingly, Mr. Saunders’ convictions on the charges stated in the Information are entirely proper.

Analysis [ 9 ] The forfeiture of firearms is governed by subsection 491(1) of the Criminal Code : 491 .

(1) Subject to subsection (2), where it is determined by a court that (

a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or (

b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained, the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs. Subsection 491(1) stipulates that specified things that are “used in the commission of an offence” or “involved or the subject-matter of an offence”, if seized, are to be forfeited.

The proceeding governed by this subsection is an in rem proceeding. In other words, it is a proceeding which affects the status of an item of property as a consequence of proceedings, in this case the proceedings between Mr. Saunders and the Crown. (See Martineau v. Canada (Minister of National Revenue – M.N.R.) , 2004 SCC 81 , [2004] 3 S.C.R. 737 at para. 33 ; see also Black’s Law Dictionary , 9th ed, sub verbo “in rem”.) [ 10 ] The wording of subsection 491(1) makes plain that once certain conditions are satisfied, forfeiture is mandatory.

That forfeiture is mandatory is also the conclusion reached in Montague (see paragraphs 67 to 70 ). [ 11 ] Subsection 491(2) provides for the return of a seized item that is subject to forfeiture under subsection 491(1) if certain conditions are met: If the court by which a determination referred to in subsection (1) is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

In short, a seized firearm may be returned to a lawful owner if the lawful owner was not a party to the offence(

s) charged and had no reasonable grounds to believe that the firearm would or might be used in the commission of an offence. [ 12 ] Subsection 491(2) provides for judicial adjudication of a lawful owner’s right to seek return of his or her seized property. It concerns whether the seized firearm can be returned to its lawful owner – a person. Accordingly, it is an in personam proceeding. The general rule is that a judgment in personam binds the parties and their privies. In this case, the parties are the lawful owner of the seized 303 rifle ‒ Mr.

Holloway, and the Crown, which has custody of the seized property. (See Black’s Law Dictionary, 9th ed, sub verbo “in personam” .) [ 13 ] At his sentencing, Mr. Saunders’ counsel acknowledged that the guns should not have been in the house where Mr. Saunders was residing. Nevertheless, he requested on Mr. Saunders’ behalf that they not be forfeited because they belonged to other persons. The trial judge declined his request, stating: … Under

section 491 I am ordering that the firearms seized 12 gauge shotgun and the 303 rifle and ammunition be forfeited to Her Majesty the Queen and shall be disposed of as the Attorney General directs. Although there was evidence at this hearing that these items belonged to the offender’s father and brother, in order to return these items to them I must be satisfied by law, one, that the lawful owners were not party to the offences, and two, the lawful owners had no reasonable grounds to believe that the thing would be or might be used in the commission of an offence.

While I am satisfied that neither of the offender’s brother nor his father were parties to these offences, I’m not satisfied that they had no reasonable grounds to believe that these items would be issued – used in the commission of an offence. The offender was living in the home where these firearms were stored. The offender has a lengthy criminal record which includes offences of violence and property related crimes. There are reasonable grounds to believe that these firearms and ammunition would or might be used to commit a crime … (Italics added.) [ 14 ] Mr.

Saunders testified that he knew the guns were in the house and he knew where they were. Indeed, the record reveals that Mr. Saunders first went upstairs to his parents’ bedroom where the 303 rifle was stored before going down to the basement from where he took the shotgun. Nevertheless, the record establishes, and the sentencing judge found, that although Mr. Saunders’ father, Paul Holloway, was the lawful owner of the 303 rifle and that he was not a party to the offences charged, she could not return the 303 rifle to Mr. Holloway. In this regard, she had no evidence or information respecting whether Mr.

Holloway, as the lawful owner of the 303 rifle, had reasonable grounds to believe that it would not be used in the commission of an offence, which subsection 491(2) stipulates must be established in order for a seized firearm to be returned to its owner. [ 15 ] Mr. Holloway was not present at Mr. Saunders’ sentencing, nor was there any other evidence respecting his beliefs as to the possible use of the 303 rifle so as to enable the sentencing judge to evaluate whether his beliefs were based on reasonable grounds. The sentencing judge noted that Mr.

Saunders had a lengthy criminal record which included offences of violence and property-related crimes and said that there were “reasonable grounds to believe that these firearms and ammunition would or might be used to commit a crime”. In the absence of evidence from Mr. Holloway, the sentencing judge made the only decision available to her to make ‒ that being that she was not satisfied that Mr. Saunders’ father had no reasonable grounds to believe that the 303 rifle would not be used in the commission of an offence. She simply had no evidence on which she could rest a contrary conclusion.

Accordingly, the sentencing judge cannot be said to be in error in ordering forfeiture of the 303 rifle and in refusing to order its return to Mr. Holloway.

[16] Despite the sentencing judge having made no error, I am disturbed by the fact that Mr. Holloway, as the lawful owner of the303 rifle and not a party to the offences, was deprived of his property in circumstances where he may not have known when and how toassert his right to seek that it not be forfeited. While Mr. Holloway was doubtlessly aware that his property had been seized, it isunknown whether he was aware that he ought to be heard or could be heard respecting its potential forfeiture at Mr. Saunders’sentencing and whether he was in a position to address the matter at that time.

The record discloses that Mr. Saunders’ counsel, whowas not in a solicitor-client relationship with Mr. Holloway, advised the court that Mr. Saunders’ mother was present in court but thatMr. Holloway was working in Long Harbour and could not be present. [17] It is Mr. Holloway’s personal property rights that are in issue in Mr. Saunders’ appeal. Therefore it is Mr. Holloway, as thelawful owner of the seized 303 rifle, who is entitled to seek to have his rifle returned to him pursuant to the provisions of subsection491(2).

In this regard, I add that there is nothing in the record that could support the notion that Mr. Holloway waived his right to beheard under subsection 491(2). [18] The forfeiture of a third party’s property in relation to offences with which that third party had no involvement was consideredby this Court in Greening v. Canada (Ministry of Fisheries and Oceans) (1997), (NL CA), 157 Nfld. & P.E.I.R.278. Greening involved the forfeiture of a snowmobile which had been used by the owner’s father in the illegal fishing of cod.

Theissue was whether the son had taken reasonable care to ensure that the snowmobile would not be used to illegally fish cod. [19] The governing legislation in Greening was the Fisheries Act, R.S.C. 1985, c. F-14, while this case involves application ofCriminal Code provisions. The test to be met by a lawful owner wishing to retrieve his seized property under subsection 491(2) of theCriminal Code is somewhat different from the test in the Fisheries Act which was at play in Greening.

Nevertheless, the comments ofGreen J.A., as he then was, address the seizure of property owned by third parties and involved in the commission of offences, andcapture the essence of my concern regarding the forfeiture of Mr. Holloway’s 303 rifle: [25] It is apparent from this scheme that it is intended that innocent persons should not have their property taken from them justbecause it is used, without their involvement, in the commission of an offence by someone else.

The Act recognizes, however, that it isimpractical to place on enforcement personnel an obligation to make determinations of ownership prior to seizing articles that are used inthe commission of the offence. It is not unreasonable to assume, as an opening proposition, that the offender using the

article either ownsit or is in possession of it with the knowledge and consent of the true owner. Nor is it reasonable for a court trying the offence to engagein determining the side issue of ownership especially where a third party owner will not be a participant in the trial. Consequently,provision has been made to respect the rights of innocent third party owners by allowing, after the fact, a determination of true ownershipand, in effect, a rectification of any prior forfeiture order.

What is clear from this is that it is not intended that non-complicit third partyowners who act reasonably in parting with possession of the article, suffer the loss of their property as a result of the illegal acts of others... [20] By referring to the Greening case I am not suggesting that Mr. Holloway’s rifle ought or ought not to be returned to him. Rather, I quote the paragraph to show that as a general rule, third-party owners of seized property ought to be able to be heard respectingwhether their seized property ought to be returned to them.

I note that in Greening, the Fisheries Act provided a procedure by which athird-party owner of seized property could challenge a forfeiture which had been already ordered. In this case, paragraph 491(2)provides that lawful owners of firearms which are subject to forfeiture or which have been forfeited may have their property returned tothem if certain conditions are met but it does not stipulate when such determinations are to occur. This is in contrast to other provisionsof the Criminal Code which stipulate when an application for the return of seized property is to be taken. (See for example

section 490.4of the Criminal Code.) Nevertheless, the wording of subsection 491(2), in my view, contemplates that lawful owners can apply for thereturn of their seized property both before and after forfeiture is ordered. In this regard I note the language of subsection 491(2) providesthat a “lawful owner of any thing that is or may be forfeited to Her Majesty…” can seek its return. Moreover, if forfeiture orders alreadymade could not be challenged, there would be no need for the wording which directs that compensation for an already destroyed item bepaid to a lawful owner found entitled to its return.

I therefore conclude that it is open to Mr. Holloway to apply to Provincial Courtpursuant to subsection 491(2) to be heard respecting his request to have the 303 rifle returned to him. [21] At first blush it may seem that a new hearing at which Mr. Holloway could adduce evidence may be precluded by the doctrineof res judicata because the sentencing judge already made a decision under subsection 491(2). Res judicata bars the same parties fromrelitigating the same matter. (See Black’s Law Dictionary, 9th ed, sub verbo “res judicata”; Donald J.

Lange, The Doctrine of ResJudicata in Canada, (Markham: Butterworths Canada Ltd., 2000). See also Penner v. Niagara (Police Regional Services Board), 2013SCC 19, [2013] 2 S.C.R. 125 at para. 29.) However, the doctrine does not apply in these circumstances because the same parties are notinvolved. Mr. Holloway is the lawful owner of the 303 rifle and he was not a party to or involved in the sentencing judge’s decisionunder subsection 491(2) at Mr.

Saunders’ sentencing. [22] Accordingly, the trial judge’s forfeiture order pursuant to subsection 491(1) remains in effect as having been validly determinedin an in rem proceeding respecting the two firearms which were the subject of Mr. Saunders’ lawful convictions. However, the forfeitureorder respecting the 303 rifle is subject to change should Mr. Holloway succeed in an application to have the rifle returned to himpursuant to the provisions of subsection 491(2). [23] As well, I cannot agree with my colleague Rowe J.A.’s comments respecting the conduct of the police and the Crown.

Asnoted in paragraph 8 above, there was no sworn and tested evidence or legal argument respecting the 303 rifle, and Mr. Saundersadmitted the charges and has not appealed his convictions. In these circumstances, I fail to see any suggestion, let alone support in therecord, for the notion that the police acted improperly by seizing the 303 rifle, or that the Crown acted improperly in prosecuting theoffences as charged. Disposition [24] Mr. Holloway may apply to the Provincial Court for the return of his 303 rifle pursuant to subsection 491(2) of the CriminalCode. Although Mr.

Saunders’ brother’s shotgun was not referenced during the appeal, it would also be open to the brother to make thesame kind of application should he choose to do so. The Criminal Code does not prescribe a time limit for taking such an application. In

this circumstance I would order the Crown to keep the firearms for a reasonable period of time, and if no application is forthcoming, to give reasonable notice to Mr. Holloway before destroying the 303 rifle. [ 25 ] While Mr. Saunders’ appeal succeeded in putting Mr. Holloway’s issue before the Court, it is not a vehicle whereby he can seek return of the 303 rifle to Mr. Holloway. Accordingly, it is dismissed. L. R. Hoegg J.A. I concur: B. G. Welsh J.A. Rowe, J.A.: [ 26 ] I have read the reasons of my sister Hoegg. I agree with her analysis at paragraphs 24-25 to the effect that Mr.

Holloway can apply, if he so chooses, under s. 491(2) to the Provincial Court for return of his 303 rifle. I also agree that Mr. Saunders’ appeal should be dismissed, in that it is not a vehicle whereby he can seek on Mr. Holloway’s behalf return of the 303. [ 27 ] My analysis that follows is, thus, obiter dicta . I set it out because I am disquieted by how aspects of this case were dealt with by the police and the prosecution. [ 28 ] Dwight Saunders is a young man who is struggling with mental health and addictions issues.

This has gotten him in trouble with the law on several occasions; offences have included acts of violence. [ 29 ] On December 9, 2013, Mr. Saunders was subject to two orders under s. 109(1) of the Criminal Code prohibiting him from “possessing any firearm”. However, on that day he got possession of a shotgun, with which he threatened to harm himself. Fortunately, that did not happen and after a “stand off” he surrendered to the police. [ 30 ] This occurred at the house where Mr. Saunders was living with his mother, Ruth Saunders, and his father, Paul Holloway. The shotgun that Mr.

Saunders had in his possession belonged to his brother; it had been stored in the basement. [ 31 ] When Mr. Saunders was arrested, police seized the shotgun and also a 303 rifle that had been “locked in our [bed]room”, as Ms. Saunders told police. The 303 belonged to Mr. Holloway. There is no evidence that Mr. Saunders ever laid hands on the 303, nor that he had access to it. There is nothing linking Mr. Saunders to the 303, save that he was resident in the house. [ 32 ] Notwithstanding the foregoing, police seized Mr. Holloway’s 303.

The power to make a warrantless seizure in a dwelling house is conferred by s. 489(2) of the Criminal Code . There is also power to seize items at common law. Whether the seizure of the 303 was made under s. 489 or at common law, in order to detain the item seized police would have to apply to court pursuant to s. 489.1(1): Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under

section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable , (

a) where the peace officer is satisfied, (

i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and (ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or (

b) where the peace officer is not satisfied as described in subparagraphs (a)(

i) and (ii) , (

i) bring the thing seized before the justice referred to in paragraph (a) , or (ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1). (Underlining added.) [33] Subsection 490(1) sets out the criteria the justice is to use to determine a peace officer’s application to detain seized goods: Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(

b) or subsection 489.1(2), anything that has beenseized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, (

a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to thatowner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice thatthe detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or (

b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seizedshould be detained for a reason set out in paragraph (

a) detain the thing seized or order that it be detained, taking reasonable care toensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminaryinquiry, trial or other proceeding. (Underlining added.) [34] It is not clear whether the police followed the foregoing procedures in order lawfully to detain Mr. Holloway’s 303. If thepolice did so, undoubtedly they argued that they needed to detain the 303 as evidence in the case against Mr. Saunders. This is sobecause the information alleges that Mr.

Saunders “did possess firearms and ammunition, to wit: a 12 gauge shotgun and a 303 rifle,while prohibited from doing so” and that Mr. Saunders “did without lawful excuse, use, carry, handle or store firearms and ammunition,to wit: a 12 gauge shotgun and a 303 rifle, in a careless manner and without reasonable precautions for the safety of other persons …”. (Underlining added.) [35] The facts are clear that Mr. Saunders “possessed” the shotgun and that he used it in a “careless manner”. But, how was it thatMr. Saunders “possessed” the 303?

How was it that he used it in a “careless manner”? [36] The Criminal Code defines “possession” at s. 4(3): (

a) a person has anything in “possession” when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [37] Subsection 4(3) of the Criminal Code has been considered in various cases, including by the Supreme Court of Canada in R. v.Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, a case extending possession doctrines to electronic data. There, Fish J. held that s. 4(3) of theCode defines three types of possession: personal possession, constructive possession and joint possession.

He went on to state that “[i]tis undisputed that knowledge and control are essential elements to both [personal and constructive possession]” (at paragraph 15). (Italicsin original.) [38] Fish J. outlined that the test for personal possession, being knowledge and control: 16. … the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thingin question, and must be aware as well of what that thing is. Both elements must co-exist with

an act of control (outside of public duty):Beaver v. The Queen, (SCC), [1957] S.C.R. 531, at pp. 541-42. [Emphasis added.] [39] Fish J. considered the test for constructive possession and wrote: 17. … Constructive possession is … complete where the accused: (1) has knowledge of the character of the object, (2) knowingly putsor keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular placefor his “use or benefit” or that of another person. [Emphasis added.] [40] Kozak J. (ad hoc), writing for the majority in R. v.

Pham, (2005) (ON CA), 77 O.R. (3d) 401 (Ont. C.A.), adecision endorsed by the Supreme Court in R. v. Pham, 2006 SCC 26, [2006] 1 S.C.R. 940, stated the following regarding constructivepossession: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v.Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417, [1996] O.J.

No. 1106 (C.A.). [Emphasis added.]

[41] Joint possession was described in R. v. Pham as follows: 16 In order to constitute joint possession pursuant to s. 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 147D.L.R. (3d) 724 (S.C.C.); R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301 [1998] O.J. No. 2246 (C.A.); R. v.Barreau, (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and Re: Chambers and the Queen, (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.). [Emphasis added.] [42] In R. v.

Terrence, (SCC), [1983] 1 S.C.R. 357, a leading Supreme Court authority on joint possession andconstructive possession, Ritchie J. (at 364) stated: ... a constituent and essential element of possession under s. 3(4)(b) [now s. 4(3)(b)] of the Criminal Code is a measure of control on thepart of the person deemed to be in possession by that provision of the Criminal Code. ... [43] At 363, Ritchie J. cited with approval comments by O’Halloran J.A. in Rex v. Colvin and Gladue (1942), (BCCA), 78 C.C.C. 282 (Ont.

C.A.) at p. 287, which characterized control as an essential element of possession: ... “knowledge and consent” cannot exist without some measure of control over the subject-matter. If there is the power to consent thereis equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control,without which the need for their exercise could not arise or be invoked … (Underlining added.) [44] Constructive possession was dealt with by Drapeau C.J.N.B. in R. v.

Smith, 2012 NBCA 99, wherein he cited BruceMacFarlane, Robert Frater and Chantal Proulx in Drug Offences in Canada, 3d ed, looseleaf (Aurora, Ont: Canada Law Book Inc., 2012)at para. 4.1280 concerning evidence of control in residential cases: In residential cases of constructive possession, it should also be noted that where a person occupies a room, such occupation constitutessome evidence from which an inference may be drawn that the person was aware of the presence and had control of a drug found withinthe room: see R. v. Chambers (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont.C.A.); R. v.

Fairgrieve (1996), (BC CA), 136 W.A.C. 219 (B.C.C.A.); R. v. Tran (2000), 45 W.C.B. (2d) 531 (B.C.S.C.); R. v. Pearson, 2000 BCCA 216; see alsoCarnes v. State, 480 N.E. 2d 581 (Ind. App. 2 Dist. 1985); and R. v. Papaluca (2001), 123 A. Crim. R.. 322 (C.C.A.W.A.); R. v.Peterson (2002), 289 W.A.C. 313 (B.C.C.A.); U.S. v. Paulino (unreported, March 29, 2006, U.S. Court of Appeals, 2d Cir., docket no.04-2553-cr).

However, a rebuttable presumption of possession because of tenancy or occupancy does not exist at common law or underthe Controlled Drugs and Substances Act, and a decision by a trial judge to analyze the evidence on a presumptive basis constitutes areversible error: R. v. Watson (2011), , 2011 ONCA 437 , 94 W.C.B. (2d) 733 (Ont.C.A.), at para. 13.

Whether and to what extent any particular accused can be tied to drugs found in residential premises will depend on a range of factors,including: whether the accused lived there or regularly stayed over; whether others lived there or stayed over, and the frequency;clothing and other indicia of living arrangements; who paid the rent or mortgage; in whose name are the various utility accounts;frequency of attendance based on surveillance; and relationship between individuals appearing to live in the premises. This is not, ofcourse, an exhaustive list.

For example, knowledge and control over openly visible drugs can and often will be inferred where theaccused are the only ones living in the premises: R. v. Vu (2004), 2004 BCCA 381 , 328 W.A.C. 293 (B.C.C.A.), at para. 33; R.v. Wu (2010), 2010 BCCA 589 , 92 W.C.B. (2d) 9 (B.C.C.A.); R. v. Callejas (2011), 94 W.C.B. (2d) 498 (Ont.C.A.), at para. 8. [45] In R. v.

Watson, 2011 ONCA 437, Laskin J.A., for the Court, rejected the trial judge’s notion that “because of [the accused’s]tenancy, Watson was legally deemed to have knowledge and be in possession of the drugs and gun unless he could rebut thatpresumption” (at paragraph 12). Instead, Laskin J.A. held that this view “reflect[s] a clear error of law” and “[a] rebuttable presumptionof possession because of tenancy or occupancy does not exist at common law …” (at paragraph 13). [46] Mr. Saunders was aware that Mr. Holloway’s 303 was locked in his parents’ bedroom. But, in what way did he exercise“control” over the 303?

There is nothing to indicate that he did. Had Mr. Saunders broken into the place where the 303 was stored andlaid hands on it, the facts would be different. But there is no evidence that anything of that nature occurred. In short, it very muchappears that Mr. Saunders never had “control” of Mr. Holloway’s 303, and, if so, then Mr. Saunders never had “possession” of it, eitherpersonally or constructively. [47] As for “using” (or carrying, handling or storing) the 303 in a “careless manner” there is nothing to support this. [48] The police included the 303 in both counts (as quoted above).

I cannot see how they had a proper basis to do so. The Crownthen pressed forward with the counts including the references to the 303. [49] Mr. Saunders pleaded guilty to both counts. Thus, he “admitted” that he both possessed the 303 and that he used it in a“careless manner”.

But those admissions appear to me to be without proper legal or factual foundation. [50] Before this Court, Crown counsel relied on the guilty pleas and on the fact that the 303 was stored in the house where Mr.Saunders resided to ground both “possession” and use in a “careless manner”. [51] But “possession” requires “control” and nothing indicates that Mr. Saunders was ever in control of the 303. And “careless” usemust involve “use”, which seems totally absent regarding the 303. [52] It very much appears that the 303 was not involved in the commission of any offence.

I am less concerned about Mr.Holloway’s 303 than I am with the fact that Mr. Saunders may have been improperly charged, prosecuted and, in the end convicted as

regards the 303. However, I am confident that Mr. Saunders did not receive a heavier sentence because of the 303. Nonetheless, I find it troubling that charges were laid, pressed and convictions were entered as regards the 303 when there are serious questions whether they should have been. M. H. Rowe J.A.