IN THE COURT OF APPEAL AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Cr. App. No. 49 & 50 of 2008 Between LATCHMI BHARATH And FERNEY BOHOROQUEZ A/C FERNEY PENA BOROHOQUEZ AND APPELLANTS THE STATE RESPONDENT PANEL: P. Weekes, J.A. A. Yorke Soo-Hon, J.A. R. Narine, J.A. APPEARANCES: J. Singh and M. Rooplal for the Appellants W. Rajbansie and L. Singh for the Respondents DATE DELIVERED: 29 th July 2010 Page 1 of 18

2 JUDGMENT Delivered by P. Weekes, JA 1. The appellants were convicted, along with one Carlos Olivares, of possession of a dangerous drug for the purpose of trafficking and were sentenced to terms of eight years and ten years with hard labour respectively. Olivares did not appeal. BACKGROUND OF FACTS 2. On December 6, 2004, two police officers observed a Mazda 323 motor vehicle turn into the parking lot at Gulf City Mall. The vehicle parked in the mall and the officers stayed a short distance away and observed the vehicle. Nothing of significance occurred. They eventually approached the vehicle and asked its occupants to disembark. Appellant No.1 Bharath was seated in the front passenger seat, appellant No.2 Bohoroquez was the driver of the vehicle and a third person, Olivares, sat in the back seat. An officer conducted a search of the vehicle and found a large opaque white feed type bag in the middle of the rear seat. He opened the bag and observed that it contained packets. The officer pierced one of them in the presence of the appellants and found that it contained a white powdery substance. He then told the appellants that he was of the opinion that the substance was cocaine and cautioned them collectively. Appellant No. 2, Borohoquez, said, an East Indian guy told me to bring that bag here for him. Appellant No. 1 denied any knowledge of the bag and its contents. The police were unable to say when or where she had entered the vehicle. The officer continued the search and found a large quantity of bolivares (1.747M) and three one dollar U.S. currency notes on Olivares. When the contents of the feed bag were weighed and tested at the Forensic Science Centre, it was certified to be 21.3kg of the dangerous drug cocaine. Neither appellant gave evidence at trial. 3. The first question presented by this appeal is in respect of the appellant No.1 only, and it is whether she could be considered a person who occupies a vehicle within the Page 2 of 18

3 meaning of the Dangerous Drugs Act (the Act), the relevant section of which reads as follows: 21. (1) Without limiting the generality of section 5(1) or (4), any person who occupies, controls, or is in possession of any building, room, vessel, vehicle, aircraft, enclosure or place in or upon which a dangerous drug is found shall be deemed to be in possession thereof unless he proves that the dangerous drug was there without his knowledge and consent. [Emphasis ours] 4. It was submitted on behalf of appellant Bharat that the trial judge erred when he directed the jury that they could use the provisions of S 21(1) of the Act to find that the prosecution had made out its case against her and secondly, that he fell into further error when he failed to direct the jury on what the term occupier meant in the context of the Act. It was further submitted that the judge failed to put the issue of Bharat s mere presence in the motor vehicle and so incorrectly equated presence in the motor vehicle with occupation in law. (sic) 5. At first examination it would seem that the term occupier in the context of the Act could not simply refer to someone who was in a motor vehicle, i.e. merely present. If that were so, the term controls would be rendered redundant since any and every person in the vehicle would indeed be present. On that basis alone it is clear that the term occupier must import element/s beyond mere presence. 6. Authorities in this jurisdiction are inconsistent on this issue and require review. However before we come to look at the decided cases it is useful to consider the jurisprudence in certain Canadian provinces in which there is legislation in pari materia with S 21(1) of the Act. The Opium and Narcotic Drug Act 1929 Section 15 states: Without limiting the generality of paragraph (d) of section four of this Act, any person who occupies, controls or is in possession of any building, room, vessel, vehicle, enclosure or place, in or upon which any drug is found, shall, if charged with having such drug in possession without lawful authority, be deemed to have been so in possession unless he proves that the drug was there without his authority, knowledge or consent, or that he was lawfully entitled to possession thereof. Page 3 of 18

4 7. In R v Gun Ying [1930] 3 D.L.R. 925, police officers entered the premises of the appellant. They entered a bedroom and found the appellant s wife and another man smoking opium. They also found a can with a small quantity of opium under the bed. The appellant was away conducting business at Niagara Falls when the search was conducted. He was charged and convicted with unlawful possession of a narcotic drug contrary to section 15 of the Opium and Narcotic Drug Act The appeal was allowed as the Court found that the drug was there without his knowledge. Chief Justice Mulock considered section 15 and the words occupies, controls or is in possession of. He found that the words are not used in the widest sense but in their limited sense namely that occupation, control or possession must under the circumstances be of a nature which goes to and supports the charge, otherwise the presumption does not arise. [Emphasis ours] 9. In R v Lou Hay Hing [1945] OLR 187, police officers searched premises in Ontario and found a quantity of opium on the premises, together with implements to smoke opium. The premises were formerly owned by the appellant as he had sold them to a Mrs. Watson some two and a half months before the arrest. He continued to live at the premises and the opium was not found in the rooms he occupied. He denied knowledge of the use or presence of opium on the premises and this was confirmed by Mrs. Watson. Both the appellant and Mrs. Watson were charged and convicted of unlawful possession of opium contrary to section 17 (previously section 15) of Opium and Narcotic Drug Act The appellant appealed his conviction. 10. The appeal was successful as the court held that there was nothing in the nature of personal possession and he could not be said to occupy any part of the premises except his own bedroom in the sense that he had a degree of control over it. C.J.O. Robertson considered the meaning of the word occupies in relation to section 17. He held that to occupy means to take possession in a broad and proper context but also considered its narrow usage in the case of R v Gun Ying. He held that to give the word occupies a Page 4 of 18

5 broad meaning would produce unjust and unreasonable results and that it should be construed narrowly. The key point was that the element of control of the premises and its use by the person charged must be shown for them to be caught by section While both of these authorities dealt with premises, the Canadian courts in no way limited their consideration to buildings and they certainly did not draw any distinction between buildings and vessels, vehicles or aircraft all of which are mentioned in the relevant section. The principle that emerges clearly is that mere presence does not establish occupation and that occupation in law is given a narrow meaning and must involve an element of control. 12. We now turn to our local authorities and it is perhaps most useful to deal with them in chronological order. 13. In Mantoor Ramdhanie & Ors v The State Cr. Apps , 97 of 1997, [a case on which the State relied in this appeal] the Court of Appeal addressed the issue of occupation in the Act. The relevant facts are that on the 18 th October 1996 police officers had two cars under surveillance in the Point Fortin area. The first car was driven by Deochan Ramdhanie and Mantoor Ramdhanie was seated in the front passenger seat. In a second car were Patrick Toolsie in the driver s seat and Ken Gresham in the front passenger seat. The police approached both vehicles and searched them. In the front passenger seat well of each car bags containing what proved, on analysis, to be cocaine were found. The parties were arrested and charged and the prosecution relied on the operation of S 21(1) of the Act. 14. The relevant ground of appeal was that the trial judge s directions on possession were inadequate in the circumstance of the case. In particular, he failed to direct the jury adequately or at all on the legal concept of an occupier in drug offences and on the concept of mere presence. Counsel for the appellant submitted that the word occupier as used in the section could be interpreted to mean mere presence, there must be some Page 5 of 18

6 element of control. He conceded that if proper directions had been given, it would have been open to the jury to find that Mantoor was an occupier. Ibrahim JA, in dismissing the appeal, at page 26 the court stated: the appellant Mantoor was in occupation of PAY 8234 and the cocaine was found at his feet in large packages. If the drugs were so found as the prosecution alleged then by the provisions of the 1991 Act all three appellants were deemed to be in possession of the cocaine. This is not a case of mere presence in Mantoor. At page 27 he continued:..we are of the opinion that all the prosecution has to establish where the drug is found in a vehicle is that the accused person either occupies or controls or is in possession of the vehicle. The accused person is then deemed to be in possession of the drug and the onus shifts to him to prove that the drug was there without his knowledge and consent..at common law, the prosecution has to prove that the accused person was in possession of the drug and that he knew that it was a dangerous drug, that is, the prosecution has to prove possession and knowledge in the part of the accused person. Sec. 21(1) of the 1991 Act, however, only requires proof that the accused person occupies, controls and is in possession of the. vehicle..in or upon which the drug is found and by the fact that the person occupies, controls and is in possession of the.vehicle in or upon which the drugs is found deems to be in possession of the drug unless he proves want of knowledge and consent. Where the case falls under the statute, the prosecution no longer has to prove knowledge on the part of the accused person. To that extent, the statute altered the provisions of the common law. In this case, with respect to the appellant Mantoor there was no issue that he was in the vehicle. The issue was whether he was in the front or rear seat. But his position in the vehicle made no difference to the application of Sec. 21 of the 1991 Act. In our opinion the evidence established all the ingredients to constitute possession under the Act, and accordingly, there is, therefore, no merit in this ground of appeal. Page 6 of 18

7 15. In that case the court gave the term occupies its widest meaning. Unfortunately even though the Canadian authorities of R v Gun Ying and R v Lou Hay Hing, among others, were relied on by the appellant Mantoor Ramdhanie in written submissions they were not addressed in the Court s written judgment. The Court simply restated the law as laid out in S 21(1) and concluded that the appellant was in occupation of PAY 3284 and that this is not a case of mere presence in Mantoor The judgment is devoid of the rationale for finding that it was not a case of mere presence but rather one of occupation. We are therefore unable to determine how the court came to resolve the issue and on what basis the Canadian authorities were dismissed or distinguished. Although they are only persuasive, the reasoning contained in them is clear and sound and we are certain that had the Court of Appeal given due weight and deliberation to them it would have come to a different decision in respect of the issue of occupation. With due respect, we are of the opinion that in Ramdhanie the Court of Appeal did not take the opportunity to give full and proper consideration to the submissions on this ground. There might well have been other reasons to hold that the appellant was an occupier, but they were not explored in the judgment. While the Canadian authorities dealt with premises as opposed to vehicles the Court of Appeal made no distinction and we can see no valid or rational distinction to be made between them in law. 16. It is difficult therefore to employ the Ramdhanie judgment to support the State s submission that the appellant was in law an occupier. In any event there are several distinguishing factors in the two matters, for example the cocaine was found at the feet of Mantoor Ramdhanie and by virtue of his relationship with the driver a degree of control might be inferred. 17. We pause to note that nowhere in the judgment did the Court of Appeal consider vehicle as opposed to premises and do any analysis thereon. As with the Canadian authorities, the section was treated holistically. 18. The Court of Appeal next addressed the issue of occupation under the Act in Koonjan Ramdass and Camla Ramoutar Mag. App 13/2002. There they were dealing Page 7 of 18

8 with premises, that is, a dwelling house. The question raised in that appeal was whether the appellants were occupiers of the premises in accordance with the Act. 19. The facts were that on 19 July 1991, police officers executed a search warrant for illegal arms and ammunition at the home of Kelvin Jadoo at Biche. At the time of its execution, the officers found Jadoo, both appellants and some young children at the premises. They also found two plastic bags containing marijuana and a shotgun cartridge and a quantity of seeds, stems and plant material resembling marijuana in a tin. The appellants told the police that they did not live at Jadoo s premises but were staying there at that time as the roof of their home was being repaired. They were arrested and the State s case against them was that they were occupiers within the meaning of S 21(1) of the Act. 20. After considering the Canadian authorities of the Rex v. Gun Ying and Rex v Lou Hay Hung, Sharma CJ, at page 8 held, the cases thus show that the courts in interpreting occupies give it the narrow rather than the wide meaning. There was no evidence that the appellants were in occupation of Jadoo s home in the narrow sense of the word. Thus there was no evidence on which the learned Magistrate could have found that both appellants were in occupation of the room and thus in possession of the items found there. As there was no prima facie case of occupation made against the appellants, they were not required to show that they had no knowledge of the drugs on the premises. Such a burden would only have fallen on them if the prima facie case of occupation were made against them. The Magistrate thus erred when he found them to be in occupation of the premises. 21. In this matter the Court of Appeal applied the narrow and restrictive meaning of occupation. Once again there was no analysis of whether there was any distinction to be drawn between premises and vehicle, vessel or aircraft. 22. The Court of Appeal returned to the issue in Kenroy Thomas & Sheldon Roberts v PC Ian Garcia Mag. App. 283/2003, [another case relied on by the State]. It was the Page 8 of 18

9 prosecution case that on 22 September 2000, the appellants and another man were travelling in a motor vehicle when it was stopped by police officers along the Paria Main Road in Toco. Kenroy Thomas was the driver and Sheldon Roberts was seated in the front left passenger seat. The respondent asked the first appellant to open the trunk and in it the officer found a blue plastic bag containing grams of marijuana. They were convicted of being in possession of a dangerous drug for the purpose of trafficking The prosecution had relied on S 21(1) of the Act. The appellants appealed their conviction. 23. In considering S. 21(1) Nelson JA at page 10 said, the effect of these provisions is that a person who occupies a vehicle in which a dangerous drug is found is deemed to be in possession thereof unless he can discharge the persuasive burden of proving lack of knowledge and consent. He continued at page 11, at the trial none of the defendants contended that he did not occupy the vehicle. However before us, Miss Seetahal contended that occupation implied control of the vehicle. Presence in the vehicle was not enough. She relied on two Canadian cases which construed the words occupies, controls or is in possession of any building in narcotics statutes. 24. After considering the cases of R v Gun Ying [1930] 3 DLR 925, R v Lou Hay Hung [1946] O.R. 187 and Ramdass and Ramoutar v Knights (unreported) Mag. App No. 13 of 2002, he concluded, these decisions, which we respectfully say were correct, establish that serendipitous presence in a building is not equivalent to occupation thereof. The same is true of such presence in a motor vehicle. Save for such a case the law relating to occupation of a motor vehicle was established by this court in Ramdhanie v The State [Emphasis ours]. He then dismissed the appeals. 25. We are in agreement with the conclusion drawn by the Court of Appeal as highlighted immediately above. What this decision establishes is that serendipitous presence in a motor vehicle, as serendipitous presence in a building, is not equivalent to or enough to prove occupation. There can be no reason for serendipity to be given Page 9 of 18

10 different meanings when considering buildings vis-à-vis vehicles and therefore serendipity must mean mere presence. 26. We are of the further view that the remainder of the quoted passage is inoffensive, if all that it means is that when presence is not serendipitous S 21(1) of the Act applies with full force since presence which is more than serendipitous is in law occupation. 27. Unfortunately in Kenroy Thomas & Sheldon Roberts v PC Ian Garcia the Court of Appeal did not in its judgment demonstrate how it applied the law, (as it was set out) to the facts of the case in order to conclude that the appellants were in occupation. 28. It would seem that Nelson, JA, even though he concluded (correctly in our view) that in respect of a motor vehicle, serendipitous presence was not sufficient to amount to occupation, was of the opinion that the Court of Appeal was bound by the decision in Ramdhanie. We respectfully dissent from the view that Ramdhanie represents the law of occupation in respect of motor vehicles since in Ramdhanie, the Court did not purport to distinguish between premises and motor vehicles and engaged in no analysis thereof in applying S. 21(1). In our judgment, therefore, Ramdhanie did not establish the law relating to occupation of a motor vehicle. 29. In Keith Bissessar & Gabriel Deosaran v The State Cr. App. 21 & 22/2005 the Court of Appeal returned to the issue of occupation under the deeming provision S. 21(1) of the Act. The impugned direction by the trial judge in relation to the second appellant he was not in control of that room but he, too, was an occupant of that room, which had a dangerous drug. And therefore, the law deems him to have been in possession unless he can prove that it was there without his knowledge and consent. And, as I said because of the quantity and manner in which it was packed and laid out, he would have to show that it was there without his knowledge and consent. 30. The factual background was that on 6 August 1999, a party of police officers went to Huggins Street, Tacarigua. It was a two storey building with four apartments. They Page 10 of 18

11 knocked on the door of one apartment and shouted Keith Bissessar, police. The first appellant ran out of the apartment and was later apprehended nearby. The second appellant was found in the apartment hiding close to some boxes which contained marijuana. On being cautioned, the second appellant informed the police that he did not live in the apartment but upstairs. Nothing was found in his apartment. They were convicted of possession of a dangerous drug contrary to section 5 (4) of the Dangerous Drugs Act, the prosecution in respect of the second appellant having relied on S 21(1) of the Act. 31. The Court of Appeal considered the law and authorities on possession and occupation, notably the cases mentioned above and concluded We find that the evidence of occupation against the second appellant, which is simply, that the was seen in the yard of the premises on one occasion and was found hiding next to the boxes containing the drugs, falls woefully short of what is required to prove that he was an occupier or in control of the premises, and consequently in possession of the drugs. The evidence merely revealed that he lived in the upstairs apartment and that the property was owned by his parents; howcver, there is no evidence that he had any form of control over the premises at apartment 249B. We are of the view that there is insufficient evidence that could place him in occupation. Yet again the Court of Appeal held that occupation within the meaning of the Act must import an element of control. 32. In Richard Govia & Ors v The State Criminal Appeal 2,3,4/2006 the appellants had on 31 May 1996, travelled to Rio Claro in a motor vehicle driven by Nicholas Cadette. Govia and Ravello were passengers in the vehicle. The police kept the car under surveillance and on searching it they found on the back seat, a large green bag containing plant and seed material which proved to be marijuana. The appellants were convicted, the State having relied on S. 21(1) of the Act to prove possession in them. Page 11 of 18

12 33. In submissions, counsel argued that the trial judge had erred in law by failing to direct the jury on the narrow meaning of the term occupies within the context of section 21 (1) of the Act. In his first limb of this submission he relied on the Canadian case of R v Klyne [1958] 28 C.R The Court of Appeal held R v Klyne to be inapplicable in this jurisdiction. The court then went on to site passages from Kenroy Thomas and Sheldon Roberts v Police Constable Garcia and Ramdhanie v the State and without further analysis dismissed this ground as being without merit. The court appears to have considered itself bound by its earlier decisions. With no analysis to assist us we are unable to discern the rationale in this decision. 34. The most recent treatment of the issue at hand is to be found in the case of Dial Maharaj & Anor v The State Cr. App. No.30 & 31/2007. The facts were that the police intercepted a motor vehicle driven by the first appellant. The second appellant was in the front passenger seat. They ordered the appellants out of the vehicle and found on the floor on the driver s side, a white plastic bag with four containers. The containers had a hard creamish substance later found to be cocaine. They were both convicted of possession of a dangerous drug for the purpose of trafficking. They appealed their conviction and sentence. 35. It was submitted on behalf of appellant no 2. Mohammed, that a material irregularity constituting a substantial miscarriage of justice occurred during the course of the trial owing to the failure of the judge to direct the jury that they were first to be satisfied to the extent that they felt sure that the applicant was a person who occupies, controls or in possession of a vehicle before the presumption of possession arises. Furthermore, the learned trial judge failed adequately or at all to direct the jury that mere presence in the vehicle was not sufficient to make one an occupier within the meaning of S 21(1). 36. In reply, the State contended that while, in respect of premises, mere presence was not sufficient to clothe an accused with occupation and a measure of control must be established, in respect of a vehicle the question was whether the accused could be said to Page 12 of 18

13 have been in the vehicle serendipitously and whether, when taxed about the presence of drugs, the accused had a passive response. It thus sought to draw a distinction between the positions of a person found on premises and a person found in a vehicle. The use of the term serendipitously begged the question of whether it means anything more than mere presence. In the given context we cannot say that it does. Further, on the issue of an appellant s passive response, to use that as a factor in determining occupation would be in effect to do two things which are contrary to law, firstly, to effectively deprive a person of their right to silence and secondly, to shift a burden onto them prematurely, since what S 21(1) provides is that the burden is shifted onto the appellant only after the prosecution has first established a prima facie case of occupation. It is not intended that when confronted an appellant is bound to provide an innocent explanation for his presence in the motor vehicle. 37. The Court of Appeal noted that while the judge did not in his charge to the jury address the issue of S 21(1) of the Act, it found it convenient to deal with it as it was raised on the appeal. Without drawing the distinction proposed by the State, the Court, after thorough analysis of the existing legislative provisions and case law concluded that it was bound to construe occupy narrowly so that mere presence in the vehicle is not enough to trigger the deeming provision. 38. Mr. Rajbansee in the instant appeal relied on Dial Maharaj and its dictum that where there is no clear physical control in any one person S 21(1) applies. That is correct in law but his argument stops short since the next question, which is the nub of this appeal, is whether there was evidence that proved occupation. 39. The foregoing review establishes firstly, that in every case to which S 21(1) of the Act applies, the prosecution must prove prima facie occupation, possession or control of the premises or vehicle before the accused is deemed to be in possession of the narcotic and any burden cast upon him. Secondly, in respect of premises, the local Court of Appeal has been consistent in construing the term occupies narrowly as necessitating an element of control. In respect of motor vehicles, before Dial Maharaj it was thought Page 13 of 18

14 that the case of Mantoor Ramdhanie was authoritative in respect of motor vehicles under S 21(1) of the Act and this decision was followed in the case with Kenroy Thomas; Sheldon Roberts v The State and Richard Govia et. Al. v The State. As we have now made clear, for the reasons stated we are of the opinion that we are not bound by the authority of Mantoor Ramdhanie and reiterate that it cannot be authority for the proposition that mere presence amounts to occupation in respect of motor vehicles. 40. For all purposes the term occupies within the Act is to be given its narrow meaning incorporating an element of control. There can be no reason to apply different principles to buildings and vessels and vehicles, the absurdity of so doing would immediately be apparent in the instances of houseboats, which while mobile provide living accommodation. An example of such control might be that the prosecution evidence establishes that a passenger is directing the vehicle s route or that the relationship between driver and passenger allows for an inference of a measure of control by the passenger. Mere presence cannot and does not equate to occupation. Where there is evidence capable of proving that a passenger is an occupier the judge must go on to explain to the jury the meaning of the term and leave it to them to find whether or not the passenger is indeed, on the facts, an occupier. 41. In respect of appellant Bharat, the sum total of the evidence for the State was that when the police approached the vehicle in which she was the front seat passenger, she denied all knowledge of the bag found on the back seat and its contents. The evidence disclosed nothing further in respect of her association with the vehicle. She could not therefore be proven to be an occupier within the meaning of the Act and consequently could not be deemed to be in possession and no burden cast on her. We find that this ground has merit and the appeal in respect of appellant Bharat is allowed. Of course no useful purpose would be served by an order for re-trial since the prosecution evidence cannot now be enlarged. 42. The second question raised in this appeal touches and concerns the effect of S 21(1) on the burden of proof and was raised on behalf of both appellants. Page 14 of 18

15 43. It is submitted that S 21(1) imposes a reverse onus of proof on the accused person and that the Act seeks to do the same in six other sections, but that the language used by Parliament differs from section to section and therefore the difference must be indicative of distinction in meaning between the sections. 44. In S 5(7), S 11, S 20 and S 29, the terminology employed in relation to the onus being imposed on the accused person is the burden of proof of such matter shall be on the person or burden of proof being on the accused. In S 19 and S 21 the expression used is the proof thereof is upon him and unless he proves respectively. 45. Mr Singh argued that the effect of the distinction is to place a legal burden on an accused where the expression burden of proof is used but merely an evidential one where unless he proves is the chosen wording. The practical effect would then be that rather than have to prove lack of knowledge and consent both appellants would only have had to raise the issue and it would be for the State to disprove it. Neither of the appellants gave evidence at their trial but the issues would have been raised, according to Mr Singh s submissions, on the prosecution evidence of their respective responses when cautioned. 46. He conceded however that the principal duty and role of the Courts in interpreting legislation is to give effect to the intention of Parliament. He referred to the case of London Borough of Hounslow v Thames Water Utilities L.T.D. [2003] S.W.L.R in which Scott-Baker L.J. said at paragraph 7a: Whilst I agree that ordinarily a word appearing in more than one place in the same statute should be given the same meaning whenever it appears and particularly so where it appears in the same section or sub section, this like all rules of construction, is but a guide to achieve the overriding objective which is to ascertain the intention of parliament. 47. This perhaps proves to be a useful starting point to deal with this issue. It must first be noted that this Act was passed and has effect even though inconsistent with S 4 Page 15 of 18

16 and 5 of the constitution, Parliament obviously being of the view that it was necessary to contravene certain human rights provisions for the good of the society as a whole. As draconian as the S 21(1) might seem, given the reality of our society and the prevailing situation in respect of drug trafficking, in our view the provision meets the test of proportionality. 48. Secondly, the sections referred to by counsel for the appellants all purport to do the same thing i.e. to relieve the prosecution of strict proof of elements of the respective offences, instead requiring proof of some lesser surrounding circumstances which give rise to a presumption which operates to the detriment of the appellants. The next step in the legislation is for the accused to rebut the presumption. The one thing or word that is consistent in all seven sections is proof or prove. This word is wholly incompatible with the concept of evidential burden, since an evidential burden never in law requires proof but merely the raising of an issue which it is then for the other side to disprove. 49. It is therefore clear to us that Parliament s intention was to place a legal burden on the accused against whom the prima facie requirements have been proven. 50. The same word, same meaning and therefore different words, different meaning presumption is a well-recognised principle of statutory interpretation but it does not always prevail. In the case of Bapoo v Co-operations General Ins. Co. (1997) 36 O.R. (3d) 616 (C.A.), which we rely on not for the facts but for the principle of law which is espoused therein, Laskin J.A. wrote: Giving the same words the same meaning throughout a statute is a recognized principle of statutory interpretation... The court ordinarily presumes that legislation is internally consistent and coherent and that the legislature does not enact inconsistent provisions. However, the principle of textual consistence is not an inflexible rule or an infallible guide to interpretation 51. We also note that the repeated expressions are not unusual or distinctive and that the presumption of consistent expression does not always reflect the realities of Page 16 of 18

17 legislative drafting. The presumption can be and is in this case rebutted by the relevant competing considerations. We adopt the view of Dickson CJ, in his dissenting judgment in Mitchell v Peguis Indian Band [1990] 2 S CR 85, when he opined that the presumption of consistent expression was merely a drafting convention but that the presumption raised in the statute embodied an important legislative policy. 52. In conclusion, we hold that the effect of S 21(1) is to place a legal burden of proof on a person who occupies within the meaning of the Act to prove on a balance of probabilities that the dangerous drug was there without his knowledge and consent. 53. The final question presented by the appeal is that of the constitutionality of S 21(1), in reference to the presumption of innocence. The issue is whether the imposition of a reverse burden of proof infringes on that presumption. 54. In support of his submission counsel for the appellants relied on the obiter dicta of the House of Lords in the case of R v Lambert [2002] 2 AC 545 to the effect that to impose a legal burden on an accused could amount to a breach of the presumption of innocence. It was a majority opinion 3 2 and considered that if the burden were to be construed as merely an evidential one proportionality would be achieved and there would be no abrogation of S 3(1) of the Human Rights Act. The statute which was under consideration in R v Lambert bears no similarity to the Act in this appeal. This authority being a decision of the House of Lords is merely persuasive and does not bind us, further, the reasoning relied on by the appellants was obiter and by a narrow majority. 54. Having considered R v Lambert we are nevertheless of the view that the law on this issue has been authoritatively settled in this jurisdiction in Dial Maharaj with which we agree. We see no reason to depart from it in this case and in any event are bound by our earlier decision. 55. For the reasons stated we are of the opinion that this ground is without merit. Page 17 of 18

18 56. We dismiss the appeal of appellant No. 2 Borohoquez and affirm his conviction and sentence. Sentence to run from date of conviction. We allow the appeal of appellant No. 1 Bharat. P. Weekes Justice of Appeal A. Yorke-Soo Hon Justice of Appeal R. Narine Justice of Appeal Page 18 of 18