R. v. Beveridge (T.A.),

• Jurisdiction: New Brunswick
• Judge: Brien, P.C.J.
• Neutral Citation: 2001 NBPC 1
• Citation: (2001), 237 N.B.R.(2d) 216 (PC),2001 NBPC 1,237 NBR(2d) 216,(2001), 237 NBR(2d) 216 (PC),237 N.B.R.(2d) 216
• Date: 19 January 2001
• Court: Provincial Court of New Brunswick (Canada)

R. v. Beveridge (T.A.) (2001), 237 N.B.R.(2d) 216 (PC);

    237 R.N.-B.(2e) 216; 612 A.P.R. 216

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] N.B.R.(2d) TBEd. MY.024

R. v. Troy Anthony Beveridge

(2001 NBPC 1)

Indexed As: R. v. Beveridge (T.A.)

New Brunswick Provincial Court

Brien, P.C.J.

January 19, 2001.

Summary:

The accused was charged with pos­session of cannabis marijuana for the pur­poses of trafficking.

The New Brunswick Provincial Court con­victed the accused of possession only.

Criminal Law - Topic 5332

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Neces­sity and purpose of - The police searched a house pursuant to a warrant - A police officer testified that the accused indicated that one of the cups of coffee found on the kitchen table near two bags of mari­juana and a scale was his - The New Brunswick Provincial Court noted that while the statement at­tributed to the accused was obviously made after he was arrested, the Crown did not move to prove its volun­tariness by means of a voir dire - The court held that, even though the accused made no objection at the time, the state­ment should not be admitted - See para­graph 14.

Narcotic Control - Topic 577

Offences - Possession - General - Con­structive possession - The police searched a house pursuant to a warrant - They found, inter alia, two bags of mari­juana and a set of scales on the kitchen table - One officer testified that he had known the accused for several years and in the last three years had been to this resi­dence on five occa­sions, including this date, to execute search warrants - He testified that the accused was present as a resident on four of those occasions, and that he knew the accused to have resided there for some time - The New Brunswick Provincial Court held that the evidence established the accused's occupancy and residency, al­though not his ownership and that, while other persons were in the house at various times, it was the accused who was the continuing prin­cipal resident - See para­graphs 14 and 33 to 34.

Narcotic Control - Topic 577

Offences - Possession - General - Con­structive possession - The police searched a house pursuant to a warrant - They found, inter alia, two bags of mari­juana and a set of scales on the kitchen table - The New Brunswick Provincial Court held that the accused had construc­tive pos­ses­sion of the marijuana - He had a right of control over the marijuana derived from his status as a principal resident - If some­one other than the accused had brought the marijuana to the residence, he could have declined to con­sent to it being there, had it removed or caused it to be removed from the premises - Alternative­ly, he could have demon­strated his with­hold­ing of consent - Drugs had been seized in prior raids at the accused's house, showing a clear pattern of tolerance by the accused towards the pres­ence of illicit drugs in the house.

Narcotic Control - Topic 583

Offences - Possession - General - Infer­ence of possession - The police searched a house pursuant to a warrant - They found, inter alia, two bags of marijuana and a set of scales on the kitchen table - The New Brunswick Provincial Court held that the circumstantial evidence was suffi­cient to permit the inference that the accused had some measure of control over the mari­juana and thus convict him of possession - The court stated: "Acknowl­edging that an accused has no obligation to prove any­thing at trial, there nevertheless are situ­ations wherein an accused risks conviction in the absence of any explana­tion" - See paragraph 39.

Narcotic Control - Topic 606

Offences - Possession - Evidence - Cir­cumstantial evidence - [See Narcotic Control - Topic 583 ].

Narcotic Control - Topic 630

Offences - Possession - Burden of proof - Bur­den on accused - [See Narcotic Con­trol - Topic 583 ].

Narcotic Control - Topic 703

Offences - Trafficking - Possession for purposes of trafficking - The police searched a house pursuant to a warrant - They found, inter alia, two bags of mari­juana and a set of scales on the kitchen table - The New Brunswick Provincial Court held that the accused had construc­tive possession of the marijuana, but that there was insufficient evidence to convict the accused of possession for the purpose of trafficking - The quantity of marijuana was small (12.61 grams), the method of packaging was not inconsistent with per­sonal use, the amount of money seized from the accused's person was small ($285) and the denominations were not inconsistent with legitimate use (13 twenty-dollar bills, one ten-dollar bill and three five-dollar bills) - The scales, while suspicious, were not in themselves suffi­cient to prove a purpose of trafficking - See paragraph 42.

Cases Noticed:

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191; 95 C.C.C.(3d) 385; 36 C.R.(4th) 145, refd to. [para. 21].

R. v. Grey (E.) (1996), 89 O.A.C. 394; 28 O.R.(3d) 417 (C.A.), refd to. [para. 21].

R. v. Sparling (1988), 31 O.A.C. 244 (C.A.), refd to. [para. 21].

R. v. Chambers (1985), 9 O.A.C. 228; 20 C.C.C.(3d) 440 (C.A.), refd to. [para. 21].

R. v. Patrick (1975), 11 N.B.R.(2d) 451; 7 A.P.R. 451; 26 C.C.C.(2d) 561 (C.A.), refd to. [para. 26].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8; 4 C.C.C.(3d) 193, refd to. [para. 26].

McGee v. R. (1978), 3 C.R.(3d) 371 (Que. C.A.), refd to. [para. 27].

R. v. Savory (D.M.) (1996), 94 O.A.C. 318 (C.A.), refd to. [para. 27].

R. v. Tokarek, [1967] 3 C.C.C. 114 (B.C.C.A.), refd to. [para. 29].

R. v. Caldwell (1972), 7 C.C.C.(2d) 285 (Alta. C.A.), refd to. [para. 30].

R. v. Morgan, [1998] O.J. No. 5664 (Prov. Ct.), refd to. [para. 31].

R. v. Keleher, Green and Molasky (1991), 115 N.B.R.(2d) 101; 291 A.P.R. 101 (Prov. Ct.), refd to. [para. 32].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.C.(2d) 18, refd to. [para. 40].

Counsel:

Phillip Holland, for the Crown;

Rodney MacDonald, for the defence.

This trial was heard on January 19, 2001, by Brien, P.C.J., of the New Brunswick Provincial Court, who delivered the follow­ing decision.