Fuller v. R., [1975] 2 SCR 121

Supreme Court of Canada

Fuller v. R., [1975] 2 S.C.R. 121

Date: 1973-12-21

Arthur Frederick Bert Fuller Appellant;

and

Her Majesty The Queen Respondent.

1973: January 30; 1973: December 21.

Present: Fauteux C.J. and Martland, Judson, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Narcotics—Possession—Apartment door forced open by police after being shut by accused—Accused standing in livingroom—Smell of hashish—Another person found in bathroom attempting to dispose of drugs—Plastic straw found to contain residue of hashish—Inevitable and overwhelming conclusion that other person had possession of drugs with consent and knowledge of accused.

APPEAL from a judgment of the Court of Appeal for Manitoba setting aside acquittals of the accused on charges of (1) possession of cannabis resin for the purpose of trafficking and (2) unlawful possession of LSD. Appeal dismissed.

M. Kaufman, for the appellant.

S.F. Sommerfeld, Q.C., and J.E. Hodges, for the respondent.

The judgment of the Court was delivered by

JUDSON J.—The accused was charged on two counts: first, possession of cannabis resin for the purpose of trafficking, and second, unlawful possession of a restricted drug, Lysergic Acid Diethylamide. He was acquitted at trial on both counts. The Manitoba Court of Appeal unanimously set aside these acquittals, made a finding of possession on each count and remitted for trial the issue whether the possession of cannabis resin was for the purpose of trafficking, in accordance with s. 8 of the Narcotics Control Act.

These are the facts on which the charges were based. Shortly after midnight January 18, 1970,

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the police went to the apartment of the accused. They knocked on the door and after a few moments’ delay, the door was opened by the accused to the extent of the night chain. He was then informed that the callers were police and was requested to open the door. He slammed the door shut. The police again identified themselves, told the accused that they had a warrant and after a very short wait, forced open the door, which was still on the chain. When the police entered the suite the accused was standing in the livingroom near the door. No one else was in that area. They heard the toilet being flushed in the bathroom. The door to the bathroom was locked. It was forced open and the police found one Robert Pike, who lived at another address, on his knees with his hands in the toilet, attempting to force a plastic bag down it. They seized this bag and the contents were later analysed and found to contain cannabis resin (hashish) and Lysergic Acid Diethylamide. When he was shown the contents of the plastic bag, the accused said that it was the first time that he has seen it, that he guessed it belonged to Pike, and that his roommate Desjardins knew nothing about it. In the bedroom of the suite the police found one Ronald Desjardins, who was in bed and apparently asleep.

A further search was made of the suite, and behind the chesterfield in the livingroom was found a plastic straw which, on analysis, was found to contain a residue of hashish. The evidence of one of the detectives was that when he entered the suite, there was a smell of hashish in the livingroom. On cross-examination, he refused to agree that this smell might have been the smell of incense. The content of an ashtray in the suite were also seized and analyzed but the analysis did not disclose that these contents contained any narcotic or drug. This was the sum total of the evidence. The accused did not testify nor did he call any evidence.

On this evidence the trial judge refused to make a finding that the accused had possession

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either of the hashish or LSD. He held that there was no evidence that the accused was aware of the presence of these drugs, and also, that when the police officer said that he smelled hashish, what he actually smelled might have been incense. The Court of Appeal, on the facts as proved, held that the conclusion was inevitable and overwhelming that Pike (the person who was trying to dispose of the drugs) had possession of the hashish and LSD with the consent and knowledge of the accused, and that in refusing to act on the evidence, the trial judge was resorting to speculative, irrational and conjectural conclusions.

I am in complete agreement with the reasons delivered in the Court of Appeal. I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Yanofsky, Pollock & Associates, Winnipeg.

Solicitor for the respondent: Deputy Attorney General of Canada, Ottawa.