R. v. Park (A.S.), (2015) 363 Nfld. & P.E.I.R. 120 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: February 27, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 363 Nfld. & P.E.I.R. 120 (NLPC);2015 NLPC 1414

R. v. Park (A.S.) (2015), 363 Nfld. & P.E.I.R. 120 (NLPC);

    1129 A.P.R. 120

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.020

Her Majesty the Queen v. Ashley Shannon Park

(2015 NLPC 1414A00245)

Indexed As: R. v. Park (A.S.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

March 3, 2015.

Summary:

The accused was charged with possession of a controlled substance (Hydromorphone).

The Newfoundland and Labrador Provincial Court found the accused not guilty.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audiotapes, etc. - General principles, admissibility, etc. - The Newfoundland and Labrador Provincial Court noted that the Crown had only one copy of the photographs that it sought to have entered as an exhibit - The court reiterated its statement in two prior decisions that "As a matter of practice, a party seeking to enter photographs as an exhibit should provide two copies to the court. One to be marked as the exhibit and one for the judge to view as the witness is describing the content of the photographs. Often, counsel provide one copy and as a result, the trial judge is not able to view the photographs when a witness is referring to them." - See paragraph 11, footnote 1.

Criminal Law - Topic 5571

Evidence and witnesses - Exhibits - General - [See Criminal Law - Topic 5360 ].

Criminal Law - Topic 5580

Evidence and witnesses - Exhibits - Viewing of by judge or jury - [See Criminal Law - Topic 5360 ].

Evidence - Topic 540

Presentation of evidence - Exhibits - General - [See Criminal Law - Topic 5360 ].

Evidence - Topic 3783

Documentary evidence - Public documents - Photographs, movies, videotapes, etc. - Photographs - [See Criminal Law - Topic 5360 ].

Narcotic Control - Topic 577

Offences - Possession - Constructive possession - The police received a complaint that some young men, travelling in a blue vehicle, were turning garden hoses on and leaving the water running - Two police officers stopped a vehicle matching that description - The three occupants attempted to flee but were detained by the police - The front seat passenger (the accused) was searched and a "used needle" was found in his pocket - The officers described the accused as being "high" - One officer described the accused as being pale with bloodshot eyes - The vehicle was full of drug paraphernalia - The officers found a number of pills containing Hydromorphone near the driver's seat - The accused was charged with possession of a controlled substance - The Newfoundland and Labrador Provincial Court concluded that the accused would have been aware of the drug paraphernalia - The key consideration was whether he had possession of the pills - That required proof of knowledge and control - There was no evidence that the accused handled the pills - Although neither constructive nor joint possession required proof of manual handling, they required proof of some measure of control - The court accepted the evidence of the vehicle's driver that the pills belonged to him and the accused did not know that he had the pills - An inference of knowledge and/or control could be drawn from the accused's flight - However, it could also be inferred that he fled because he had been involved in the offence of mischief - The court concluded that there was a possibility that the accused and the driver consumed some of the pills before being stopped by the police - However, the evidence did not extend beyond there being a possibility of that having occurred - The Crown had not established beyond a reasonable doubt that the accused had possession of the pills - Accordingly, the court found the accused not guilty - See paragraphs 54 to 64.

Narcotic Control - Topic 578

Offences - Possession - Joint possession - [See Narcotic Control - Topic 577 ].

Narcotic Control - Topic 580

Offences - Possession - Knowledge - [See Narcotic Control - Topic 577 ].

Narcotic Control - Topic 583

Offences - Possession - Inference of possession - [See Narcotic Control - Topic 577 ].

Narcotic Control - Topic 604

Offences - Possession - Evidence - Proof of possession - [See Narcotic Control - Topic 577 ].

Cases Noticed:

R. v. Smith (T.A.), [2014] Nfld. & P.E.I.R. Uned. 27 (Prov. Ct.), refd to. [para. 11, footnote 1].

R. v. Cross (W.), [2015] Nfld. & P.E.I.R. Uned. 1 (Prov. Ct.), refd to. [para. 11, footnote 1].

R. v. Prokofiew (E.) (2012), 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 18].

R. v. Phelan (D.B.) (2013), 337 Nfld. & P.E.I.R. 64; 1047 A.P.R. 64; 2013 NLCA 33, refd to. [para. 18].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 19].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 19].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 20].

R. v. Ahmed (O.), [2013] O.A.C. Uned. 381; 2013 ONCA 473, refd to. [para. 20].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 28].

R. v. Bonnell (C.) (2015), 430 N.B.R.(2d) 1; 1121 A.P.R. 1; 2015 NBCA 6, refd to. [para. 29].

R. v. Burnett, [2015] O.J. No. 481 (Sup. Ct.), refd to. [para. 30].

R. v. Salah (G.) et al. (2015), 328 O.A.C. 333; 2015 ONCA 23, refd to. [para. 31].

R. v. J.H. (2014), 350 Nfld. & P.E.I.R. 47; 1088 A.P.R. 47; 2014 NLCA 25, refd to. [para. 31].

R. v. Wall (J.D.) (2012), 329 Nfld. & P.E.I.R. 104; 1022 A.P.R. 104; 2012 NLCA 67, refd to. [para. 36].

R. v. Bonassin (D.) (2008), 278 Nfld. & P.E.I.R. 45; 854 A.P.R. 45; 2008 NLCA 40, refd to. [para. 36].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 39].

R. v. Morelli - see R. v. U.P.M.

R. v. Russell (D.J.) (2011), 307 B.C.A.C. 142; 519 W.A.C. 142; 2011 BCCA 277, refd to. [para. 42].

R. v. Barreau (S.N.) (1991), 9 B.C.A.C. 290; 19 W.A.C. 290 (C.A.), refd to. [para. 43].

R. v. Pham (K.T.) (2005), 204 O.A.C. 299 (C.A.), affd. (2006), 349 N.R. 387; 213 O.A.C. 399; 2006 SCC 26, refd to. [para. 44].

R. v. Terrence (1983), 47 N.R. 8; 4 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 45].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20; 78 C.C.C.(3d) 1 (C.A.), refd to. [para. 45].

R. v. Provost (T.), [2011] O.A.C. Uned. 390; 2011 ONCA 425, refd to. [para. 46].

R. v. Beals (K.J.) (2011), 302 N.S.R.(2d) 358; 955 A.P.R. 358 (C.A.), refd to. [para. 46].

R. v. Moose (B.A.), [2015] A.R. Uned. 38; 2015 ABCA 71, refd to. [para. 47].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68 (C.A.), refd to. [para. 48].

R. v. Ta (B.V.) (2010), 487 A.R. 168; 495 W.A.C. 168 (C.A.), refd to. [para. 48].

R. v. Williams (C.) (1998), 110 O.A.C. 348; 125 C.C.C.(3d) 552 (C.A.), refd to. [para. 50].

R. v. Lou Hay Hung, [1946] O.R. 187; 85 C.C.C. 308 (C.A.), refd to. [para. 50].

R. v. Piaskoski (1979), 52 C.C.C.(2d) 316 (Ont. C.A.), refd to. [para. 51].

R. v. Fisher (M.J.) (2005), 216 B.C.A.C. 197; 356 W.A.C. 197; 2005 BCCA 444, refd to. [para. 57].

Counsel:

M. Mills, for Her Majesty the Queen;

C. Brackley, for Mr. Park.

This matter was heard at Corner Brook, N.L., on February 27, 2015, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on March 3, 2015.