Coke charges fail as no proof of control

A man is seated in the front passenger seat of a car. A clear plastic bag containing 6.2 grams of crack cocaine rests in plain view on the centre console between him and the driver.

Is that enough evidence to find the passenger guilty of possession of cocaine?

That’s the question a Superior Court judge wrestled with in a recent case.

Test for possession of drugs

Allen Ali had been committed to trial after a preliminary inquiry where a judge of the Ontario Court of Justice found that the evidence sufficed to show that he and the driver were in joint possession of the drugs. Mr. Ali, who was ordered to stand trial on charges of possession and possession for the purpose of trafficking, challenged the ruling.

(At a preliminary inquiry the court determines whether evidence presented by the Crown is capable of supporting a guilty verdict. If it is, the judge will order that the case proceed to trial. A preliminary inquiry differs from a trial where the Crown must prove guilt beyond a reasonable doubt.)

To prove drug possession the Crown Attorney must establish (1) that the accused knew that the drugs were in the car and (2) that he had a “measure of control” over them.

There is no doubt that the evidence shows knowledge. But does it also show control?

The Crown insisted that Mr. Ali had control because the drugs were right next to him and he could have picked them up at any time.

Driver may have told passenger ‘help yourself’

The Crown noted that the driver had more drugs concealed on his person and in the car. (The preliminary inquiry judge said the driver had “an ambulatory illegal drug store.”) Because the drugs on the console were not hidden, the Crown argued, one could infer that the driver was sharing them with Mr. Ali.

Justice Edward Morgan of the Superior Court thought otherwise. The driver, he observed, may have told his passenger to “help yourself” to the drugs on the console. Or just as plausible, he may have told him not to touch the drugs.

“The fact that the drugs were situated in the middle of the two seats gives rise equally to an inference that they were being shared and an inference that they were not being shared,” stated Justice Morgan. The evidence does not tilt to a finding of control.

Court quashes order to stand trial

Justice Morgan stated that the Crown was confusing opportunity for control with actual control. “What Mr. Ali has is the opportunity to control something only in the sense that one might have the opportunity to grab another person’s cell phone when he or she puts it down for a moment. …. It certainly does not make the other person’s cell phone one’s own by virtue of physical proximity alone.”

Finding that the inference that Mr. Ali was in control of the cocaine was “speculative at best,” Justice Morgan quashed the order committing him to stand trial.