avr. 10. 2019

Clarifying the Elements of Possession for the Purposes

R. v Brake, 2019 NLCA 20 (CanLII)

Keywords: Cocaine; Trafficking; Possession; Sufficiency of Reasons


Police surveillance observes Mr. Darren Pittman acquire a brick of cocaine in Paradise, Newfoundland. Mr. Pittman’s vehicle is then followed to a parking lot in Goobies, Newfoundland. While two officers watch from out of sight, the Appellant, Mr. Dennis Brake, approaches and enters the parked car. What happens next:

  • Mr. Pittman exits the vehicle,
  • walks towards the trunk,
  • opens and closes the door,
  • returns to the driver’s seat,
  • moves the car behind a parked tractor trailer,
  • exits a second time,
  • walks towards the trunk,
  • opens and closes the door,
  • returns to the driver’s seat, and
  • drives back to the vehicle parking area.

Upon his return, the officers move in. One blocks Mr. Pittman’s car, and the other approaches the passenger door. Mr. Brake is told to show his hands and get out. There is a gray plastic shopping bag on the passenger side floor. The bag contains a brick of cocaine.

Mr. Brake is charged and convicted of possessing cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c. 19. A Majority of the Court of Appeal of Newfoundland and Labrador overturns the conviction, ordering a new trial. Welsh J.A. dissents.


The Trial Judge said a key issue to be determined was whether or not Mr. Brake actually knew (had “knowledge”) there was brick of cocaine in the gray plastic bag. He concluded “this is a circumstantial case, in which the logical inferences to be drawn from the evidence are consistent only with the guilt of the accused”. (See para. 11). But did the Trial Judge err in applying the test for “possession”? Without explicit findings on the additional separate elements of possession (including “control”) in the judgment, exactly how “logical” are those inferences? For the Majority, not logical enough.

The relevant definition (from s. 2(1) of the Controlled Drugs and Substances Act and s. 4(3) of the Criminal Code) provides that,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Possession can be personal (section 4(3)(a)), constructive (section 4(3)(a)(i) and (ii)), or joint (section 4(3)(b)). Citing R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253 at para. 15, the Court of Appeal notes that, in any case, “knowledge” and “control” are essential elements which must be proven to establish possession beyond a reasonable doubt. (See para. 29).

Here, the winning issue on appeal is that, while the Trial Judge may have found Mr. Brake had knowledge of the brick of cocaine, the reasons do not include an explicit finding that he also had control of the brick of cocaine. Why does that matter? The Court of Appeal concluded that, as per the Supreme Court’s decision in Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), “To enter a conviction when all elements of an offence have not been established beyond a reasonable doubt constitutes an error of law.” (See para. 32).

The Court of Appeal was especially critical of the Trial Judge’s reliance upon the Crown’s expert testimony (e.g. Constable Emberley, who offered an explanation of Mr. Pittman’s behaviour around the car; indicated it was consistent with what supply level drug traffickers do (see summary cited at para. 61)) for the finding that Mr. Pittman’s actions show he was “…trusting the accused to know about the presence of such a large amount of cocaine”:

…this conclusion is with respect to the actions and intentions of Mr. Pittman, not Mr. Brake. The trial judge made no specific finding on control, and it is not a logical inference from the evidence. A finding that Mr. Pittman trusted Mr. Brake to know about the cocaine does not lead to an implied conclusion that Mr. Brake had control of the cocaine. (See paras. 40-41).

The Court of Appeal noted that, in some situations, a Trial Judge’s reasons may be capable of showing that both knowledge and control were considered and established – even without an explicit finding on both points. Ultimately, however, the Court determined the Trial Judge erred in this case by not including an explicit finding on control. (See paras. 42-43).

In dissent, Welsh J.A. cited R. v. Jackson, 2007 SCC 52 (CanLII) to emphasize the point that Mr. Brake’s conviction did not rest on his mere presence at the scene of the crime:

Mr. Brake’s mere presence in the car is not the basis for the trial judge’s determination to convict him of possession of cocaine for the purpose of trafficking. Rather, the judge relied on the whole of the evidence, including the cumulative effect of his apprehension at the scene, the rejection of his explanation for being there, the particular nature of the offence, the context in which it was committed, and other circumstantial evidence of his guilt. (See para. 65).

For Welsh J.A., the Trial Judge appropriately considered the evidence of Constable Emberley and other circumstantial factors to conclude the elements of possession had been proven (i.e. that Mr. Brake had knowledge of the brick of cocaine, that he consented to its possession, and, that together with Mr. Pittman, he also controlled it). (See para. 62). Furthermore, Welsh J.A. noted that Mr. Brake’s evidence was rejected for good reason:

The judge might have taken a different view if Mr. Brake had been more forthright and had not changed his testimony regarding a package in the foot well, or if he explained that, when Mr. Pittman came back to his seat after opening and closing the trunk, he placed a package by Mr. Brake’s feet, but that he had no idea what the package contained. (See para. 60).

Welsh J.A. determined there was no basis to determine the Trial Judge erred. Although it seems there are numerous discrete questions of law on which Welsh J.A. dissented, it remains to be seen whether the Crown will appeal this issue further.

Counsel for the Appellant: Stephen Orr and Matthew Drover (Gittens & Associates, St. John’s)

Counsel for the Respondent: Elaine Reid