In R. v. Lincoln, 2012 ONCA 542, the appellant, who had been convicted of possession for the purpose of trafficking, possession of the proceeds of crime, and breach of probation, was found driving a rental vehicle which was stopped by police. Under the steering column of the vehicle was a “substantial amount” of cocaine. There was also $800 cash in the appellant’s wallet (the presence of large sums of cash can be indicia of drug trafficking). In his reasons the trial judge found that the driver had knowledge of control of the drugs:
What I am concerned about in the allegation of possession is whether there is sufficient evidence of knowledge and control to make a finding of possession. Mr. Lincoln is the operator of the vehicle. Anything that is found in that vehicle is in his de facto possession prima facie, because as the operator [he] has control of the vehicle and also is considered to have control of the contents, unless there is evidence indicating otherwise. There is not any here.
The Court of Appeal disagreed with the findings of the trial judge and ordered a new trial:
[3] This line of reasoning constituted an error in law, in our view. It in effect applied a presumption that, because Mr. Lincoln was the operator of the vehicle at the time, he is deemed to have knowledge and control of its contents, unless there is evidence to the contrary. No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption. See R. v. Watson, 2011 ONCA 437, at paras. 11-13.
This case does not hold that knowledge and control of drugs found in a vehicle cannot be inferred on the driver, but rather that such evidence, standing alone, does not create a rebuttable presumption whereby the accused would have to disprove knowledge and control. In such fact scenarios the burden still lies on the Crown to prove the case beyond a reasonable doubt.
The court sent the case back to the Ontario Court of Justice for a new trial instead of entering a acquittal. I presume this is because there may be enough evidence, notably the cash, which a trier-of-fact could convict on.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
