[18] Cst. Paul doth protest too much, methinks. She did not handle the package at the scene. She was unsure whether or not she had seen it on the road or sidewalk. She had stood on the driver’s side of the vehicle, unlike Cst. Munroe.

[19] Cst. Paul testified that the rain had stopped within an hour of her arrival, at 5:14 a.m. The first two officers testified that there was a light mist when they arrived. Neither knew how long the bag had lain on the ground. The fact that it was damp raises an inference that it could have been there before Mr. Dinh was stopped.

[20] Cst. Whalen testified that the passenger window of Mr. Dinh’s car had been rolled down two to three inches. However, Cst. Munroe testified that he did not see Mr. Dinh throw anything out of the car nor did he see any strange movement by Mr. Dinh.

[21] The Crown further points to the fact that no one, other than Mr. Dinh, was in the vicinity when Cst. Whalen found the bag with cocaine. However, this is a very busy intersection and also a high crime area, according to Cst. Munroe. No one knows the number of persons who were present at the location before Cst. Munroe stopped Mr. Dinh. Coupled with the fact that none of the police witnesses knew for sure how long the bag had been at the location where Cst. Whalen found it, it would be improper to conclude, beyond a reasonable doubt, that no one other than Mr. Dinh had been in possession of the plastic bag with cocaine.

CONCLUSION

[22] In my view, the Crown has failed to prove beyond a reasonable doubt that Mr. Dinh was in possession of the cocaine found in the vicinity of his car.[23] Accordingly, he is acquitted.___________________________André J.

via CanLII – 2016 ONSC 929 (CanLII).

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