Harlene Bajwa

The Ontario Court of Justice dismissed all trafficking and conspiracy charges against Arvin Esguerra Cruz, finding the Crown's case rested primarily on his presence at the scene of drug transactions without direct evidence of participation.

Despite surveillance and circumstantial evidence linking Cruz to the vicinity of two drug transactions on July 26 and September 5, 2023, the court held that mere presence and timing were insufficient to infer guilt beyond speculation.

The Crown failed to establish that Cruz aided, abetted, or conspired in the offences, and no evidence linked him to the drugs, communications, or planning.

The decision underscores the evidentiary threshold required to move beyond "mere presence" in drug trafficking prosecutions.

This sentencing decision addresses an offender's guilty pleas to possession of cocaine for the purpose of trafficking and possession of a prohibited device while prohibited.

The court considered significant aggravating factors, including the large quantity of cocaine, the offender being on house arrest bail at the time of the offences, and a prior criminal record for similar narcotics offences.

Mitigating factors included early guilty pleas, the offender's long-standing addiction issues stemming from a difficult childhood and family history of addiction, and demonstrated commitment to rehabilitation through program completion and good conduct in custody.

Applying principles of denunciation, deterrence, and rehabilitation, the court imposed a total sentence of 45 months in custody, concurrent sentences for the two charges, a lifetime firearms prohibition, and a DNA order.

The court also ordered forfeiture of a cell phone but strongly recommended police preserve personal photos for the offender.

This ruling addresses the scope of preliminary inquiries following the amendments introduced by Bill C-75 to the Criminal Code.

The defendants, jointly charged with numerous counts, including offences punishable by 14 years' imprisonment or more and those punishable by less, sought a preliminary inquiry for all charges.

The Crown argued that preliminary inquiry jurisdiction is now limited to offences carrying a maximum penalty of 14 years or more.

The court, aligning with previous decisions in R. v. Davis and R. v. M.R., held that preliminary inquiries are restricted to charges attracting a potential sentence of 14 years' imprisonment or more, even when grouped with less serious charges arising from the same transaction.

The court clarified that while questions about less serious charges might be permitted if closely linked to the serious ones, the court lacks jurisdiction to conduct a preliminary inquiry or order a discharge for offences punishable by less than 14 years.