His Majesty the King v. Guled Mohamed, 2024 ONCA 691

COURT OF APPEAL FOR ONTARIO

DATE: 20240918 DOCKET: C70500

Benotto, Favreau and Madsen JJ.A.

BETWEEN:

His Majesty the King Respondent

and

Guled Mohamed Appellant

Counsel: Breana Vandebeek and Nathan Gorham, for the appellant Rick Visca and Julia DeFilippis, for the respondent

Heard: June 7, 2024

On appeal from the conviction entered by Justice Fergus C. O’Donnell of the Ontario Court of Justice on August 8, 2021, with reasons reported at 2021 ONCJ 417.

REASONS FOR DECISION

1The appellant, Guled Mohamed, was found guilty of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

2In the context of a drug investigation involving multiple targets, the police obtained an omnibus warrant to search multiple locations and vehicles, including a house on Leeming Street in Niagara, Ontario. The Information to Obtain (“ITO”) stated that Briar Goodale owned the house, and that Mr. Mohamed and Ms. Goodale were in a common law relationship and lived there together. When the police conducted a search of the house, they found one ounce of crack cocaine concealed in the basement ceiling. The police charged both Mr. Mohamed and Ms. Goodale with possession of cocaine for the purpose trafficking.

3Initially, Mr. Mohamed and Ms. Goodale were represented by the same counsel, who brought an application to exclude the evidence found at Ms. Goodale’s house. On the application, Ms. Goodale gave evidence that Mr. Mohamed did not reside at the house, but that he stayed there as a “privileged guest” approximately three nights per week. The trial judge granted the application in respect of Ms. Goodale, finding that, based on the information in the ITO, the house was not a place where drugs were reasonably expected to be found. However, the trial judge dismissed the application in relation to Mr. Mohamed, finding that he did not have standing to challenge the search of Ms. Goodale’s house.

4The trial proceeded only against Mr. Mohamed. The trial judge found Mr. Mohamed guilty of possession of cocaine for the purpose of trafficking.

5Mr. Mohamed raises three grounds of appeal: (1) the trial judge erred in finding that he did not have standing to challenge the search warrant; (2) the trial judge erred in finding that the only reasonable inference from the circumstantial evidence was that he was in possession of the cocaine; and (3) the verdict was unreasonable because there was no evidence that Mr. Mohamed knew about the cocaine.

6We are not persuaded by any of these grounds of appeal, and we therefore dismiss the appeal.

ISSUE 1: THE TRIAL JUDGE DID NOT ERR IN FINDING THAT MR. MOHAMED DID NOT HAVE STANDING TO CHALLENGE THE SEARCH OF THE HOUSE

7Mr. Mohamed submits that the trial judge erred in finding that he did not have standing to challenge the search of Ms. Goodale’s house because he failed to follow the Supreme Court’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696. Specifically, in deciding whether Mr. Mohamed had standing, the trial judge should have relied on the Crown’s theory of the case that Mr. Mohamed resided with Ms. Goodale at the house, as set out in the ITO.

8We agree with the Crown that this is an overly narrow interpretation of Jones. Given that the evidence at the hearing provided by Ms. Goodale was that Mr. Mohamed did not live with her, it was open to the trial judge to look at all the evidence before him in deciding whether Mr. Mohamed had a reasonable expectation of privacy at the house. Before addressing the application of Jones to the circumstances of this case, it is helpful to start with a review of the evidence on the application and the trial judge’s decision on this issue.

(1) Background facts

9The search warrant was obtained in the context of a police investigation involving several targets suspected of drug trafficking. Originally, the police investigation focused on a group of men that did not include Mr. Mohamed. However, the police observed several interactions between these men and Mr. Mohamed that led to his identification as an additional target. The observations of Mr. Mohamed occurred between September 20 and October 25, 2017. Besides interacting with some of the other targets, Mr. Mohamed was seen engaging in transactions consistent with drug trafficking and using counter-surveillance techniques while driving.

10During their surveillance of Mr. Mohamed, the police saw him driving a white Hyundai Sonata registered to one of the original targets of the investigation. On three occasions, including one overnight, he parked the car in front of the residence on Leeming Street in Niagara Falls. The police investigation revealed that Ms. Goodale had purchased this house with another person on September 15, 2017, and that her name was on the rental agreement for another car Mr. Mohamed had been driving while under surveillance.

11In the ITO used to apply for the search warrant, the police stated that Ms. Goodale had purchased the property on September 15, 2017, that she and Mr. Mohamed were in a long-time common law relationship, and that they both lived at the property. The ITO also stated that the police had observed Mr. Mohamed coming and going from this residence on multiple days of surveillance, and that he engaged in suspected drug activities after leaving the residence.

12In advance of the trial, Ms. Goodale and Mr. Mohamed brought an application to challenge the search warrant under s. 8 of the Charter of Rights and Freedoms. At that time, they were represented by the same counsel. Only Ms. Goodale provided evidence on the application. She swore an affidavit in which she stated that she bought the property on Leeming Street with her mother’s best friend, and that she moved in on September 30, 2017. She also said that she and Mr. Mohamed did not reside together until November 2, 2017, after they had been arrested and charged with the offences. She stated that, before then, Mr. Mohamed was living with his mother and sisters in St. Catharines.

13Ms. Goodale also testified at the hearing of the application. She said that she would “never” characterize her relationship with Mr. Mohamed as common law partners, and that he spent three or four nights a week at her residence on average. In cross-examination, she agreed that Mr. Mohamed was a “privileged guest” with an open invitation to her house, but that he would leave if she wanted him to leave. She also said that she decided who could stay in the house; this was not Mr. Mohamed’s decision.

14On the application, counsel for Mr. Mohamed and Ms. Goodale argued that there was no justification for including the Leeming Street house in the locations to be searched under the search warrant. Amongst the arguments made on this issue, counsel submitted that the ITO was misleading because it stated that Mr. Mohamed and Ms. Goodale were in a common law relationship and that they lived together at the house on Leeming Street, when, based on Ms. Goodale’s evidence, that was not the case. Counsel argued that there was accordingly no basis for conducting a search of the Leeming Street house.

15By the time of the application, the Crown no longer took the position that Mr. Mohamed and Ms. Goodale were in a common law relationship, or that Mr. Mohamed lived at the Leeming Street house. Rather, in seeking to uphold the search warrant, the Crown suggested that the words “long-time” and “common law” be redacted from the search warrant. The Crown submitted that, even with these excisions, there was still a basis for a reasonable belief that drugs would be found at the house given Mr. Mohamed’s frequent attendance at the house in combination with the observation of his activities that suggested he was involved in drug trafficking.

16The trial judge granted Ms. Goodale’s application but found that Mr. Mohamed did not have standing to challenge the search warrant. Following the application, the trial judge gave a brief oral explanation for this conclusion, stating that, based on the Supreme Court’s decision in R. v. Edwards, [1996] 1 S.C.R. 128, it was clear that Mr. Mohamed did not have standing to bring the Charter application and that he, therefore, could not challenge the admissibility of anything seized at the Leeming Street house.

17In his trial decision, the trial judge included a lengthy footnote in which he gave reasons for his finding that Mr. Mohamed did not have standing to challenge the search. He explained why, in his view, the factors the Supreme Court identified in Edwards to establish standing on a Charter challenge did not support Mr. Mohamed’s position that he had standing to challenge the search warrant:

The evidence in relation to Mr. Mohamed’s connection to Leeming Street is at least as sparse as the evidence of Mr. Edwards’s connection to Ms. Evers’s residence as set out by the Supreme Court, perhaps more so. The home was Ms. Goodale’s and she and Mr. Mohamed had never lived together before. Although they had known each other for over a decade, their relationship was much more off than on [sic]. The relationship was still on/off when Ms. Goodale was living in her previous residence. In the few months preceding the search, Mr. Mohamed would spend the night either at her previous apartment or Leeming Street “probably three times a week”, but he was living with his mother and sisters. It was Ms. Goodale who had the final say on who came and went at Leeming Street. Mr. Mohamed had an ‘open invitation’, which sounds rather like the “privileged guest” status that failed to suffice for Mr. Edwards. Mr. Edwards had a key; there was no evidence on the application that Mr. Mohamed had a key to Leeming Street. He only moved into Leeming Street and changed his address to that location after he was released on bail.

The evidence on the application showed that Mr. Mohamed was present when the warrant was executed. He did not have ownership of the residence or the ability to regulate access other than under Ms. Goodale’s authority. His historical use of the property was short-term and dependent on Ms. Goodale’s acquiescence. There was no evidence on the application of him having a subjective expectation of privacy or having possession or control of the place. If he had asserted a subjective expectation of privacy, on the facts before me that expectation would not have been reasonable.

(2) Analysis

18Mr. Mohamed argues that the trial judge erred in finding that he did not have standing to challenge the search warrant. Specifically, relying on Jones, he argues that the trial judge was bound by the statements in the ITO that Mr. Mohamed lived at the house with Ms. Goodale. We disagree.

19We are satisfied that the trial judge did not make any legal errors in his approach to the issue of Mr. Mohamed’s standing and that his conclusion on the issue was supported by the evidence before him. In Edwards, the Supreme Court considered the rights of an accused to challenge a warrant obtained to search the premises of a third party. Cory J. explained that, in order to establish a violation of s. 8 of the Charter and obtain relief under s. 24(2), an accused must (1) establish standing by showing a reasonable expectation of privacy, and (2) if such an expectation is established, demonstrate that the search was conducted unreasonably: at para. 45. In deciding whether an accused has established a reasonable expectation of privacy, trial judges are to consider the totality of the circumstances, including the following factors:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

20In this case, the trial judge considered these factors and concluded that Mr. Mohamed did not have a reasonable expectation of privacy. In doing so, he observed that the circumstances in Edwards were very similar to those of Mr. Mohamed. Mr. Edwards challenged a search conducted at his girlfriend’s residence, where he was a “privileged guest” and where he was spending the night at the time of the search. The trial judge further noted that in this case, unlike with Mr. Edwards, there was no evidence that Mr. Mohamed even had a key to Ms. Goodale’s house.

21Mr. Mohamed argues that Edwards must be applied in conjunction with Jones, and that the trial judge erred in failing to consider and apply Jones. In Jones, the Supreme Court dealt with the evidentiary burden on an accused challenging a search warrant under s. 8 of the Charter. The search in that case involved text messages. The Crown’s theory, as set out in the ITO, was that Mr. Jones had authored the text messages. For the purpose of challenging the search warrant, Mr. Jones sought to rely on the evidence in the ITO to argue that he had a reasonable expectation of privacy in the text messages. He wanted to avoid presenting his own evidence on the application. This strategy was intended to allow Mr. Jones to challenge the search warrant without admitting authorship, which otherwise would amount to admitting the actus reus of the offence with which he had been charged: at paras. 16, 23.

22Côté J., for the majority, held that Mr. Jones should be able to rely on the Crown’s theory to mount his s. 8 challenge and that he did not have to provide his own evidence on the application: at paras. 9, 32-33. She stated, at para. 32, that, despite the evidentiary burden being on the applicant to establish a breach of his Charter rights, “where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements.” She reasoned that permitting applicants to rely on the evidence in an ITO to establish a reasonable expectation of privacy solves the dilemma that applicants like Mr. Jones would otherwise face when evidence supporting their position on the Charter application could subsequently incriminate them at trial. This is consistent with the principle against self-incrimination: Jones, at paras. 29-31. As this court stated in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 24, “[t]he overriding point of Jones is that an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order [to] assert standing to challenge the reasonableness of a search.”

23Mr. Mohamed relies on Jones to argue that, on his s. 8 application, the trial judge erred in not accepting as true the Crown’s theory that he was in a common law relationship with Ms. Goodale and that he resided with her on Leeming Street. We disagree. The trial judge did not err. Jones does not stand for the proposition that a trial judge must accept the Crown’s theory of the case in all circumstances when assessing an accused’s reasonable expectation of privacy. Rather, as explained by this court in Labelle, at para. 31:

The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space [Emphasis added.]

See also: R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40, at para. 85.

24In this case, Ms. Goodale and Mr. Mohamed, who were jointly represented by counsel on the application, put forward evidence that Mr. Mohamed did not reside at the Leeming Street house. Ms. Goodale testified that, while Mr. Mohamed was a “privileged guest” at her residence, she nevertheless controlled who came and went, including Mr. Mohamed. Ms. Goodale’s evidence was presented as the evidence of both accused to challenge the warrant. Further, counsel for Ms. Goodale and Mr. Mohamed relied on the errors in the ITO to challenge the search warrant. This was clearly a tactical decision. In response to Ms. Goodale’s evidence, the Crown resiled from the evidence in the ITO regarding Mr. Mohamed’s connection to the house and put forward an alternative argument.

25Unlike in Jones, Ms. Goodale and Mr. Mohamed did not seek to rely on the Crown’s theory. Rather, they sought to challenge that theory. This strategic decision also distinguishes Mr. Mohamed’s case from Labelle, in which the accused did not lead evidence relevant to his subjective and reasonable expectation of privacy for the purpose of establishing s. 8 rights: at para. 26.

26The trial judge committed no error. On the contrary, as mandated by Edwards, he considered all the circumstances and concluded that Mr. Mohamed did not have a reasonable expectation of privacy. We see no legal error in the trial judge’s reasoning and the record fully supports his conclusion.

ISSUE 2: THE TRIAL JUDGE DID NOT ERR IN FINDING THAT THE CIRCUMSTANTIAL EVIDENCE SUPPORTED A FINDING OF GUILT

27When the Crown’s case is based entirely or substantially on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 36-39.

28Mr. Mohamed points to statements in the trial judge’s reasons acknowledging that someone other than Mr. Mohamed, including a previous owner of the Leeming Street house, could have placed the cocaine in the basement ceiling to suggest that the trial judge erred in his approach to the circumstantial evidence in this case. We disagree.

29The trial judge was not required to exclude all possible inferences before relying on circumstantial evidence that Mr. Mohamed had knowledge and control of the cocaine. Rather, he could only find Mr. Mohamed guilty based on circumstantial evidence if he excluded all other reasonable inferences based on the totality of the evidence: Villaroman, at paras. 37, 41-42; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at paras. 60-61. On appeal, this court owes deference to the trial judge’s determination that no other reasonable inferences were available. As such, “the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman, at para. 55.

30The trial judge’s reasons amply demonstrate that he was aware that this was the test and that he applied it to the circumstances of this case. He started his analysis of the circumstantial evidence by acknowledging that it was “possible” that a previous owner may have inadvertently left the drugs when the house was sold, that it was “possible” another guest stashed the drugs in the house or that it was “possible” “Ms. Goodale was not entirely honest about what she knew”. The trial judge then correctly instructed himself that other “possible” inferences do not necessarily constitute reasonable doubt; such possible inferences must be reasonable. The trial judge correctly observed that, even if other guests at the house were involved in stashing the drugs, this still would not necessarily create reasonable doubt regarding Mr. Mohamed’s own involvement because more than one person could have had knowledge and control of the drugs.

31Ultimately, the trial judge considered all the evidence and concluded that the only reasonable inference was that Mr. Mohamed had knowledge and control:

I must decide this case on all the evidence, seen in totality and measured against the standard of proof beyond a reasonable doubt. While Mr. Mohamed was, from a constitutional perspective, only a “privileged guest” in Ms. Goodale’s home, the evidence at the trial proper shows that his was an established and frequent presence there in the period from her purchase of the house up to the search warrant. Documents of his that were current (the driver’s abstract) and significant (the passport and health card), for example were found in the house. His clothing was there. He had virtually unrestricted access to the house, including the basement ceiling beams. If that were all the evidence against him, [trial defence counsel’s] submissions would have more traction, although he is not the only person of whom that could be said. However, that is not the only evidence against him. His interactions with the other targets of the investigation who were demonstrated to have conducted dozens of actual or suspected drug transactions, standing alone, may not be determinative, but they are not irrelevant. The surveillance of specific meetings involving him that are consistent with drug trafficking, standing alone, may not be determinative, but it is not irrelevant. The pattern of those meetings, for example from Niagara Falls to St. Catharines to Niagara-on-the-Lake and back to Niagara Falls, all in short order and for short duration, is not, standing alone, determinative, but it is not irrelevant. The manner of his driving, which is repeatedly consistent with “surveillance consciousness” is not determinative, but it is not irrelevant.

One question for me to decide is whether or not any of the other possible inferences advanced as being available on all of the evidence is sufficient to leave a reasonable doubt about Mr. Mohamed’s guilt. The answer is “no”; the alternative explanations do not rise above speculation. At best they demonstrate the possible involvement of additional individuals, not reasonable doubt about Mr. Mohamed’s involvement with the cocaine in the basement ceiling beams. [Emphasis added.]

32We see no error in the trial judge’s reasoning. He applied the correct test to the evidence before him and concluded that, based on the totality of the evidence, other inferences proposed by Mr. Mohamed were not reasonable.

ISSUE 3: THE VERDICT WAS NOT UNREASONABLE

33Mr. Mohamed submits that the trial judge rendered an unreasonable verdict based on arguments similar to those raised on the previous issue. He argues that the verdict was unreasonable because there was evidence that people other than Mr. Mohamed had access to the basement ceiling, and they could have placed the drugs where they were found.

34In order to establish that the trial judge rendered an unreasonable verdict, Mr. Mohamed must show that (1) the verdict was not supported by the evidence, or (2) the verdict was based on illogical or irrational reasoning: see R. v. Brunelle, 2022 SCC 5, 412 C.C.C. (3d) 489, at para. 7; Lights, at para. 71. The trial judge’s decision in this case does not suffer from either of these defects.

35As reviewed above, the trial judge amply supported his conclusion that, even if other people may have had access to the house and the basement ceiling, the evidence as a whole, including the observations of Mr. Mohamed’s activities outside the house and his frequent presence at the house, supported Mr. Mohamed having knowledge and control of the drugs.

36On appeal, Mr. Mohamed’s oral submissions focused on a specific third-party who could have placed the cocaine in the basement ceiling without Mr. Mohamed or Ms. Goodale knowing about it. At trial, the evidence supporting this possibility came from Ms. Goodale. Although the trial judge’s reasons do not directly address the evidence she gave relating to this third-party, he provided a comprehensive review of the factors that led him to find Ms. Goodale lacked credibility as a witness. This finding, which is owed deference on appeal, was sufficient for him to conclude the theory involving the third party was not a plausible one.

37Finally, contrary to Mr. Mohamed’s submission, we see no contradiction in the trial judge’s conclusion that, while Mr. Mohamed did not have standing to challenge the search warrant, he was nevertheless in possession of the cocaine based on his access to the house. The test for standing is different than the factual determinations of knowledge and control that establish possession: Greer, at para. 88. In addition, there were some differences between the evidence on the application and the evidence at trial.

38Accordingly, we do not accept Mr. Mohamed’s submission that the verdict was unreasonable.

DISPOSITION

39The appeal is dismissed.