R. v. Higgins, 2011 ONCJ 587

COURT FILE NO.: 2811 998 DATE: November 9, 2011 Citation: R. v. Higgins , 2011 ONCJ 587 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) F. Stephens, Counsel for the Crown ) ) ) - and - ) ) ) Terry L. Higgins and Lizbeth Woods ) ) ) S. Proudlove, Counsel for Mr. Higgins M. Jacula, Counsel for L. Woods ) ) ) ) ) HEARD: Aug. 22,23&24, Sept.30, Oct. 11&13 2011 JUDGMENT BELLEFONTAINE, J: [ 1 ] These are my reasons for judgment in the matter of Terry Higgins and Lizbeth Woods who have been charged with:

(1) Possession of Marihuana for the Purpose of Trafficking;

(2) Possession of Cocaine for the Purpose of Trafficking;

(3) Possession of Ecstasy;

(4) Possessing a Firearm without being the holder of a licence; and,

(5) Possessing a Prohibited Firearm together with readily accessible ammunition without being the holder of a licence.

(6) Contravening the Firearms storage regulations

(7) For Mr. Higgins only; possessing a firearm while prohibited.

[2] I have considered all of the evidence and all of the arguments in this matter. If I don’t mention any particular piece of the evidenceor any particular argument raised, it is not a reflection of my not having considered it. [3] The primary issue in this case is whether the Crown has proven beyond a reasonable doubt that one or both of Mr. Higgins or Ms.Woods were in possession of the 25 calibre firearm located under a bed and a quantity of drugs located in the house they were in at thetime of the search of the home.

Secondary to that is whether the cocaine and marihuana located was possessed for the purpose oftrafficking. [4] Neither Mr. Higgins nor Ms. Woods have testified. I have cautioned myself that they are not obligated to do so. They have noobligation to establish their innocence or testify to raise a reasonable doubt. Like all persons charged, they are innocent until their guilthas been proven beyond a reasonable doubt. The burden of proving that guilt rests on the Crown throughout and it is a very high burdento be established in a criminal case pursuant to R. v. Starr and R. v. Lifchus.

In particular, as proof of possession in this case rests oncircumstantial evidence, in order to convict, I must be satisfied beyond a reasonable doubt that the only rational inference that can bedrawn from the evidence is that Mr. Higgins and/or Ms. Woods were knowingly in possession of the charged items, had control overthem and consented beyond passive acquiescence to the items being where they were. See: R. v. Griffen (2009) 2009 SCC 28 ,244 C.C.C. (3d) 289 (S.C.C.) [5] The facts are as follows: Police executed a search warrant at 388 Nipigon Street in Oshawa, on February 8th, 2011. Mr. Higginsand Ms.

Woods were present. The tactical unit officers who initially entered the home have not testified to say where they were locatedinside the home at the time of entry. The home is a small two-storey house with two small bedrooms on the mail floor. One of them isoff the kitchen and the other off the living room. I am prepared to accept the evidence of Mr. Howe that his bedroom was the one off thekitchen and that the one off the living room was used to store Mr. Higgins clothes. This evidence is consistent with the finding of Mr.Howe’s documentation and a photo of him and his children in the kitchen area bedroom.

There was a third loft-style bedroom upstairs,where $1,000 in cash was found, that I am prepared to find was the bedroom used by Mr. Higgins and Ms. Woods as their bedroom. [6] During the course of the search, the following items were located in the southwest bedroom off the living room, and used by Mr.Higgins to store his clothes: 1. 3 replica firearms under the mattress of the bed on top of the boxspring. 2.

An unloaded 25 calibre pistol with related ammunition located inside a camera box, wrapped in a cloth and inside a bag, all ofwhich was located under the bed about 1½ feet under from the side of the bed and towards the head of it. 3. Inside a blue shirt pocket hanging in a clothes rack was cash in the amount of $930.00. 4. Inside a black dress jacket pocket was an additional sum of $2,950.00 and two cell phones. 5. A bottle of dextrose powder used for cutting cocaine was located in a bag on the bedroom dresser along with four grams of cocaineand some baby clothes. 6.

A red dress shirt in the same living room area bedroom also contained nine ecstasy pills and $125. [7] I am prepared to find the clothes in question belong to Mr. Higgins. Mr. Howe has testified that is where Mr. Higgins stored hisclothes. He testified that Mr. Higgins wore jeans and jackets to work and that he, Mr. Howe, owned no jackets at the time. A picture ofMr. Higgins and a female friend was on display on the dresser unit in the room further supporting the room being used by Mr. Higgins.Mr. Howe testified that his clothes were in his northwest bedroom and that only Mr.

Higgins used the room off of the living room. All ofthe clothing that was randomly checked were of a similar size and supports only one person using the room as a clothes closet area. Mr.Higgins was the long-standing tenant of the home and there has been no evidence brought out of clothes suitable for his use beinglocated elsewhere and Mr. Howe testified that only the three of them had keys to the home to his knowledge which would reduce thelikelihood of any other individual having clothes stored at the house. We also have evidence that Mr.

Higgins always paid the rent of$1,200.00 per month in cash and it would be consistent with that that he would keep larger amounts of cash on hand than might otherwisebe common. I note as well that Mr. Howe was a relatively small individual and unlikely to wear the size extra large clothes that were inthe living room area bedroom. There was a considerable amount of questioning with respect to a number of items that were recorded byConstable Capener as being located in Mr. Howe’s northwest bedroom off the kitchen as opposed to the southwest living room areabedroom searched by Constable Wannamaker.

I am satisfied that all of the exhibits surrendered by Officer Wannamaker to OfficerCapener, including the cash and ecstasy and cell phones, were found in the southwest living room area bedroom. This would beconsistent with Mr. Howe’s direct evidence with respect to those items not being in his room. It was Officer’s Capener’s first significantcase acting as the Exhibit Officer and he has made mistakes with respect to the information recorded from other witnesses as well.

Forexample, Officer Molloy denies seizing a photograph attributed to him and testified a drivers license seized by him and photographedwas turned over to Officer Capener but not recorded. Officer Fitsgerald who did search the north west bedroom denied seeing OfficerWannamaker in it which further supports the errors being with the exhibit officer’s notations rather than the searching officers. OfficerWannamaker was strong in his evidence that he only searched the one bedroom and the photographs and video filed provide furthersupport for the items being located together in the southwest bedroom.

Accordingly I am satisfied that all of the relevant exhibits wereseized from the one bedroom and cannot be attributed to Mr. Howe. [8] Located in a decorative shallow bowl were two packages of cocaine weighing 4.6 grams each and a third baggie containing foursmaller baggies of cocaine, and a package of marihuana. Larger bags of marihuana (13.4 grams and 49.8 grams and 5.5 grams) were on alower shelf of the coffee table, along with a digital weigh scale and a box of baggies suitable for use for packaging marihuana andcocaine.

The defence have challenged whether this bowl was on top of the coffee table which is located in the middle of the small livingroom upon the officers entering the home or whether it was in some less visible location. While it may make sense that the tactical unitofficers would have moved occupants to a central visible location in the home such as the living room to control the scene, I can see no

purpose to them moving contraband prior to a formal search by the drug officers and to have done so may be counterproductive. They may inadvertently move exhibits away from a location that can later be proven to be under the control of an accused to a more neutral or ambiguous area by doing so. As well, it does not make sense that they would move the drugs to within arms’ reach of the accused where they could attempt to seize, swallow or otherwise destroy the evidence.

In support of the argument that the bowl was in some inconspicuous place at the time of police entry, the defence rely in part on the lack of recollection of two of the officers observing the bowl with the drugs and what they considered to be the nonsensical evidence of Detective Taylor when he testified he moved the larger bags of marihuana out from under the coffee table top as they could not be photographed under the table. The bowl is, however, a large display-style of bowl and many of the items on it appear to be utilitarian and intended to be readily accessible.

The bowl is large enough that it is not designed to be easily hidden away or likely to have been so. It is also visible on the table during the initial pre-search video supporting it being there at an early stage of the process when it would have been available to the officers to be seen which establishes their lack of recollection of it to be oversight on their part rather than a sudden appearance of the bowl at that location.

I also note that Detective Taylor would be unlikely to move the bowl or the drugs from under the coffee table for improper purposes in front of other officers and both accused who could testify to the impropriety at a later date either intentionally or otherwise. I am prepared to find the bowl with the readily visible drugs was on top of the living room coffee table at the time the police entered the home. In any event, if I am wrong in this finding, I would not consider the exact location of the bowl to be determinative of any possession argument.

Whether on top of the coffee table or on the lower shelf of the coffee table or some other area nearby, it would be readily observable by a regular occupant of the home. Counsel have referred me to a number of cases on the law of possession that are applicable to our fact situation. I would particularly acknowledge the recent and concise review of the law in R. v. Thompson 2010 Carswell Ontario 3690 a decision of Justice Code where the law is reviewed at paragraphs 30 through 45. Given all of the evidence in this matter, I am satisfied beyond a reasonable doubt that both Mr. Higgins and Ms.

Woods would have been well-aware of the presence of the cocaine and marihuana and had knowledge of its nature and presence. Mr. Howe has testified to the three of them being regular smokers of marihuana and there would have been no need for it to have been hidden from any of the others. It’s location under the coffee table would have made it readily observable to any regular user of the living room which Mr. Howe has testified was the common room for them. The packaged cocaine is very readily visible on the bowl along with the smaller quantity of marihuana as well.

Given my finding that the bowl was kept in the open, the absence of evidence as to the location of Mr Higgins and Ms. Woods at the time the police entered the home does not raise a reasonable doubt as to their each having knowledge of the presence of the drugs. [ 9 ] The guns in the living room area bedroom are not similarly in plain view and no fingerprints were located on the guns to directly establish knowledge. However, the defence argument that as the items were not readily visible, and in fact were hidden, knowledge cannot be attributed to the accused is overly narrow.

It overlooks the powerful inference that can be drawn for the nature of the guns. They are valuable and illegal items. It is not logical that some other person would leave such valuable items at the house knowing that if they were found they could be taken and sold, or taken and destroyed or turned over to police. The person leaving the items at the home, even if not in open view, would have to be mindful that the occupants of the home could easily come across the item and deal with it in a manner inconsistent with the owner’s interests.

In such a context it only makes sense that the person in control of the house and those in regular occupancy of it would be advised of the items presence or alternatively were so subservient to the interests of the owner that they would know who had placed it there and would not deal with the item if they did discover it. [ 10 ] The gun was located in a room used to store Mr. Higgins’ clothes. It makes no sense that someone else would store it in that room where the guns would be open to be found.

There is no evidence to support the home being used as a flop house or hangout location with a large number of transient people coming and going. Indeed there is no evidence of individuals being unsupervised inside the home apart from Mr. Higgins, Ms. Woods and Mr. Howe. Mr. Howe has testified to only the three of them having had keys for the house to his knowledge. He left his clothes at the home along with his personal papers, and pet presumably with the thought that it was safe for him to do so. The presence of the drugs in plain view and the large amounts of cash stored casually in Mr.

Higgins’ clothes and otherwise about the home provides further support for finding no other individuals commonly wandered around the home in any unsupervised fashion. The presence of the pellet guns under the mattress suggests that all were hidden by the same person and reduces the likelihood that some casual visitor has discreetly snuck some guns in and hidden them without the knowledge of the occupants with the hope of later surreptitiously retrieving them. This is not a case where a rational inference can be drawn that some unknown individual has secreted the pellet guns and firearm in the southwest bedroom.

It is a case where the only rational inference to be drawn is that one or more of Mr. Higgins, Ms. Woods and Mr. Howe have placed the guns there or allowed them to be placed there. Clearly, by law, if there is a reasonable doubt raised as to whether any one of them hid the gun without the knowledge of the others they would all be entitled to an acquittal.Mr. Howe has testified and denied possession of the gun and cocaine and I accept that denial. While there are aspects of Mr. Howe’s evidence that one can be skeptical of, that skepticism flows from his close friendship with Mr.

Higgins and a suspicion that he may be slanting his evidence in Mr. Higgins’ favour. Mr. Howe could easily have hidden the gun or guns in the basement or elsewhere in the house. The basement is unfinished and contains a jumble of stored items in which the guns would be easily concealed and less likely to be discovered than in Mr. Higgins room. He is also unlikely to have placed the firearm in a location that would implicate his friend and benefactor. He testified that no one other than Mr. Higgins used the southwest bedroom, although making it clear the door was always left open. Mr.

Higgins was bound by a firearm prohibition order and could be expected to be upset if anyone stored the firearm at the house and particularly in a room used by him to store his items without his knowledge or permission. The gun was located in a room used to store his clothes which he could be expected to regularly access. Allowing for the infrequency that most people would check under their mattress or under their bed, the items in those locations could be readily discovered by him. It would seem highly unlikely that Ms. Woods would put Mr.

Higgins in the position of hiding a firearm in his room with his other personal effects without his knowledge. With the open display of the cocaine on the living room coffee table, it would make no sense that given that open acceptance of such criminality she would have any reason to hide knowledge of the firearm from Mr. Higgins. [ 11 ] The defence submits a reasonable doubt is raised on the basis that Mr. Higgins spends a significant amount of time away from the

house and did not have exclusive access to the location of the hidden firearm. Mr. Higgins however is much more than a casual visitor at the home. The evidence of Mr. Howe supports him being at the house approximately one-third of the time. He has been the rent-paying tenant of the home for the ten months leading up to the search. He keeps a significant quantity of clothing at the home.

Although other individuals would have access to the room, we do not have evidence that the house was frequented by individuals beyond the three. [ 12 ] I am mindful of the need to avoid sexist, stereotypes and assume a gun would be possessed by the man of the household and not the woman. It is not logical however that she would hide the gun in an area used by Mr. Higgins without his knowledge. Considering all of the evidence and all of the arguments in this matter, I am satisfied beyond a reasonable doubt that that the only rational inference that can be drawn from the evidence is that Mr.

Higgins had knowledge of the presence of the pellet guns and the 25 calibre firearm in the room used to store his property. [ 13 ] I am further satisfied beyond a reasonable doubt that Mr. Higgins had control over the home. He was the rent-paying tenant from the landlord’s perspective. He had paid the rent of $1,200 per month in cash each and every month for the ten months leading to that date. He was involved in repairing the damages to the property. He was able to control the home to the extent of allowing his friend Mr. Howe to stay at the residence when he was there or not.

He had a key for the property and the gun was located in a room used solely by him to store his personal clothes and property giving him direct control over the room the firearm was located in. The only rational inference on all of the evidence before me is that Mr. Higgins exerted sufficient control over the residence that the continued presence of the firearm and drugs went beyond passive acquiescence on his part and that the continued presence of the firearm at the house along with the drugs could only continue with his consent.

Accordingly he had the requisite knowledge, consent and control of and over the firearms and drugs and there will be findings of guilt on the firearms charges and further the drug charges as elaborated below. [ 14 ] I have no similar evidence with respect to the element of control in relation to Ms. Woods that would allow me to make a finding of guilt in relation to her. I have no evidence with respect to what, if any, contribution she made to the payment of the rent of the home.

The presence of the hydro bill in her name does assist the Crown but does not necessarily imply an element of control over the property. I have no evidence with respect to any employment that she might have to indicate whether she was able to contribute financially to the rent or expenses to designate her a co-tenant who would have some legal or equitable say in what happened at the house. None of the items in question were located in a particular room or area of the house that would be considered her personal space over which she could exert some authority.

Indeed the items in question are either in the southwest bedroom ,which on Mr. Howe’s evidence was used only by Mr. Higgins, or were located in a common area which she did not have any exclusive control or influence over. The presence of a bag of marihuana on top of her DVD collection assists the Crown with respect to her knowledge of the presence of the drugs but does not in my view add to an argument that she has control over the area. Passive acquiescence to the presence of the illegal items is insufficient to support a finding of guilt. There is in my view a reasonable doubt in Ms.

Woods favour with respect to all of the offences as they require a finding of possession on her part. [ 15 ] With respect to whether the cocaine and marihuana were possessed for the purpose of trafficking, I would note the following: 1. The presence of the dextrose in the room used to store Mr. Higgins’ clothing and other items in conjunction with the cocaine significantly supports trafficking in the cocaine. The dextrose would be of no use to a user and its location stored with some cocaine powerfully supports Detective Hudson’s opinion. 2.

The packaging of the drugs in the bowl with two larger five-gram packages and another collection of four smaller packages coming to that same approximate weight in the presence of a supply of baggies in the living room and weigh scales suitable for splitting the larger packages of drugs into smaller quantities is also strong support for the opinion that the drugs were possessed for the purpose of trafficking. 3.

The hidden nature of the firearm and its unloaded, heavily-packaged nature which would prevent it from being readily used to defend the trafficker and his inventory of narcotics weakens the argument that the firearm was used in support of a trafficking operation, but I do accept that such weapons are often used as to enforce unpaid drug debts so I consider the firearm and its location to be a minimal factor in support of Detective Hudson’s opinion. 4. No debt lists were recovered as I often seen in cases such as this which are inconsistent with the drugs being possessed for the purpose of trafficking. 5.

I have uncontradicted evidence from Mr. Howe that he and Mr. Higgins and Ms. Woods were marihuana users and not cocaine users which would also support the possession of the cocaine being for sale as opposed to personal use. 6. There is the presence of a large quantity of cash in Mr. Higgins’ clothing which supports his involvement in some under-the-table financial dealings beyond his employment as a jack-of-all-trades worker at a local bar and is inconsistent with a heavy user of cocaine who would be expected to spend his money on this addictive substance too quickly to accumulate large stockpiles of cash. 7.

Although no crack pipes ,which are the most common method of using cocaine were present, there were a number of straws that could be used to snort cocaine which would be consistent with personal use. [ 16 ] Considering all of the evidence and all of the arguments in this matter, I am satisfied beyond a reasonable doubt that the only rational inference to be drawn from the evidence is that the cocaine was possessed for the purpose of trafficking.

I consider the presence of the dextrose along with the manner of packaging the cocaine in the living room along with the baggies and scales to be powerful enough evidence to override any evidence of personal use that may detract from the issue of whether the cocaine was possessed for the purpose of trafficking and accept Detective Hudson’s evidence that it was. Detective Hudson’s evidence with respect to the marijuana also being possessed for the purpose of trafficking is likely to be true.

However, notwithstanding the significant quantity of marihuana, given the relatively modest value of it and the number of marihuana smokers at the house and the potential long life-span for the marihuana over which it could be used, I am not prepared to make a finding that it was possessed for the purpose of trafficking. There will be a finding of guilt with respect to the lesser and included offence of simple possession of marihuana only in relation to Mr. Higgins for count number one. Given my findings that the shirts and clothing in question in the southwest living room area bedroom belonged to Mr.

Higgins, there will be a finding of guilt on the possession of ecstasy charge, being count number four. Although with the consent of

the Crown there will not be a finding that it was possessed for the purpose of trafficking. [ 17 ] I have not addressed counts on the information which I have been advised will be dealt with upon agreement of counsel at a later point in the proceedings. Justice P.L. Bellefontaine