WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. Order restricting publication of evidence taken at preliminary inquiry.—
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Ryan Edwards, Jerome Hines, Abdallah Mohamed and Clayton Walton
Before: Justice David S. Rose
Heard on: July 6, 7, 8, August 18, 25 and 26, 2015
Reasons for Judgment released on: August 27, 2015
Counsel:
- Ms. S. Kumaresan — counsel for the Crown
- Mr. R. Mwangi — counsel for the accused Mr. Edwards
- Mr. M. Doyle — counsel for the accused Mr. Hines
- Mr. C. Angelini — counsel for the accused Mr. Mohamed
- Mr. Burgess — counsel for the accused Mr. Walton
ROSE J.:
Preliminary Matters
1There are two Informations before me. One has two charges under the CDSA, and the other has 38 counts under the Criminal Code. All four accused elected trial by Judge and Jury with a Preliminary Hearing on May 14, 2015. On July 6, 2015, I commenced hearing evidence, which continued on July 7, 8, August 18 and 25, 2015. Argument took place on August 26, 2015.
2The Crown is not seeking committal against Mr. Mohamed on Counts 1, 2, 3, 4, 5, 6, 7, 8, 10 on the Criminal Code Information, and he is discharged accordingly. Nor is the Crown seeking committal against Messrs. Walton, Edwards and Hines on Count 17. They are discharged of that offence accordingly. The Crown is not seeking Mr. Hines' committal under counts 31 and 34 and he is discharged accordingly. After argument completed Ms. Kumaresan conceded that the Crown was not seeking committal on the Criminal Code s. 96 charges, namely Counts 5 and 6, and Mr. Edwards and Mr. Hines are discharged on those charges as well.
3Under s. 535 of the Criminal Code the Crown is seeking committal, pursuant to the same transaction rule, on the additional charge against Mr. Hines and Edwards of trafficking in cocaine between June 1, 2013 and September 2014 in the City of Hamilton and elsewhere.
4Mr. Hines concedes committal on all remaining charges and the new trafficking charge and he is therefore committed to trial on the remaining charges as well as the new trafficking charge.
5Mr. Mohamed asks to be discharged on the remaining charges against him, namely Counts 1 and 2 on the CDSA Information and Count 9 on the Criminal Code Information.
6Mr. Edwards is contesting the CDSA charges as laid but conceding committal on the new charge of trafficking, for which he will be committed for trial. He is also contesting the firearm charges, namely Counts 1, 2, 3, 4, 7, 8, 20, 27, 28 and 29 but conceding committal on Count 16. His argument is that there is no evidence that he was in possession of the guns and drugs. He is therefore committed for trial on Count 16 of the Criminal Code Information.
7Mr. Walton concedes committal on Count 16 of the Criminal Code Information but seeks his discharge on Counts 37 and 38.
Evidence
8My review of the evidence is guided by the issues before me, namely for which counts committal is being argued. There are two very helpful Agreed Facts which were entered as Exhibits which narrow the issues.
9On September 19, 2014, Detective Sahlia of the York Regional Police (YRPS) went to the Holiday Inn with DC's MacKenzie and Organ. He was interested in meeting with a sex trade worker Liana Gunn. He had information that she was a human traffickee, and wanted to check on her well-being. Having arranged a pre-text meeting as a client, all three went to her room. She gave information to them about Mr. Hines and two of his associates "Rock" and "Ryno", and their physical descriptions. The initial meeting in the hotel room lead, after a brief interruption where Ms. Gunn absconded, to a more formal statement at 1 District Headquarters of YRPS. Based on these statements, Sahlia obtained a search warrant for an address in Hamilton which Gunn had described as Mr. Hines' apartment. That address was 45 Charlton West, Suite 403. She had also given information that Mr. Hines was using an address in Toronto at 21 Livonia to store a gun. With Ms. Gunn's assistance Sahlia and his team were able to more specifically locate the address of the stash place on 21 Livonia.
10With Search Warrant in hand YRPS attended at 45 Charlton West, Unit 403 on 21 September. On that day several YRPS officers went to 45 Charlton. Drug investigators attended with Emergency Response Unit (ERU) members for the purpose of clearing the apartment so that the warrant could be executed.
11Prior to entering the unit, YRPS officers had surveilled the apartment from the street. Det. Organ recognized Mr. Hines from photographs appearing on the balcony of Unit 403 at 10:22 a.m. He was looking down to the street talking on his cell phone. To Organ he looked frantic. Organ was part of the search team waiting outside the apartment after the ERU removed the occupants from Unit 403. He saw three males as they were escorted out of 45 Charlton. The three he recognized to be Mr. Hines, Mr. Edwards and Mr. Mohamed.
12Sahlia was the seizing officer at 45 Charlton on 21 September. At 11:40 a.m. that day he took control of the apartment where he located two handguns, some ammunition, a quantity of powder cocaine, a quantity of crack cocaine and cutting agents. The guns were proven to be firearms and the drugs were tested as cocaine. Various admissions were made by the Accused regarding the weapons and their firearms prohibition orders. All of these items were located in an unzipped satchel on a Bar in the central area of the apartment. The firearms were found by Organ to be on the Bar in the main living room on the left side. From his interview with Ms. Gunn, Detective Sahlia expected to find them there. Photographs of the seizure were taken by Det. Organ and entered into evidence through Sahlia. The apartment was not large. Exhibit 2b, for instance, shows a living room which is consistent with a modest 1 bedroom unit.
13Also found in the apartment were identification of Mr. Hines, pink luggage, women's clothing, cell phones, jewellery and furniture consistent with a residential apartment. Photographic evidence documents the seizure of these items.
14PC McKenzie of YRPS was one of the first ERU officers at the door of Unit 403 as it was breached. He said it was opened with a ram. After the door was opened he looked in and saw one suspect moving from the right to the left side of the apartment. No others were directly in front of him. He identified Mr. Hines from a picture which had been given to him. He did see two others in the apartment but could not say what they were doing. Two other individuals were removed from the apartment by McKenzie, who testified that they were later identified in Court as Mr. Mohamed and Mr. Edwards.
15Det. Shane MacKenzie executed a search warrant on September 24 at 21 Livonia Place, Unit 112. This was further to information provided by Ms. Gunn, who had pointed out residences used by Mr. Hines to store a pump action shot gun. At 7:40 p.m. police entered the unit, and at 8:07 p.m. the residence was turned over to MacKenzie. He went to a bedroom upstairs which was painted blue. There was a closet with a covered ceiling access to the attic. He pushed up the cover and reached into the attic. Something fell out. It was a cardboard box for a digital scale. Thinking that there may be other items up there, he reached into the attic where he found a plastic bag. After he pulled it out he found it to be a zip lock bag full of 22 calibre ammunition. He found a second bag with a replica pellet gun, a man's wallet and a knife in a sheaf. There was some ID in there as well as a phone book and wallet. Photographs were taken of the ceiling seizure. Photographs 24A to 24H record the search of Unit 112. Photograph 24B shows a room with several items of clothing. 24C shows a photograph from Agincourt Collegiate Institute for Isa Al-Hassan Mohamed. The bag with what MacKenzie described as 22 calibre ammunition was captured in exhibit 24G.
16MacKenzie testified that he believed that bedroom belonged to the Accused Mr. Mohamed because of a conversation with Mr. Mohamed's mother who said that was where her son slept. He also testified that he found documents which were in his name, including school work and court disclosure. Aside from Exhibit 24C there were school books which had the name and assignments with Mr. Mohamed's name on it, but MacKenzie doesn't recall the full name. He clarified this in cross-examination by saying that the name Elijah was present on all the documents he found.
17Liana Gunn testified that she had been an escort for years when she met Mr. Hines. She called him "Sheist". She met Hines in June of 2013 and later began to work for him. They first met when she was purchasing marijuana from him, and later on he became her pimp, meaning that she worked as an escort and paid him. She gave evidence that their relationship began as a boyfriend/girlfriend relationship but over time his control over her increased to the extent that she could do little without his permission and that he controlled most, if not all of her movements. For most of her time with Mr. Hines she lived with him at his apartment at 45 Charlton, Unit 403 in Hamilton. Her evidence was she was not free to come or go, he told her when to work and arranged for hotels to work in. He also arranged and accompanied her as her pimp on a trip to Western Canada where she plied her trade.
18Ms. Gunn testified about what else she saw Mr. Hines do both inside and outside his apartment. He was not just a pimp but a drug dealer too. She saw cocaine and weed, meaning marijuana at the apartment too. Two of Hines' associates in the drug trade were named Ryno and Rock. She identified Ryno in court as Mr. Edwards and Rock in court as Mr. Walton, although she never knew their real names. She identified Elijah in court as Mr. Mohamed. Both Ryno and Rock were at the apartment and would come and go. She saw Hines give drugs to Ryno to sell but not to Rock. Hines was involved in making crack cocaine and she saw Ryno help him with that.
19Ms. Gunn saw up to three guns in the apartment too. They belonged to the people who would visit Mr. Hines. Mr. Hines' gun was black and silver, and he always had it on him. She witnessed him load the gun. In her evidence he needed the gun for protection as a drug dealer or from anyone who might have a problem with him. She saw bullets in the apartment too, ones with a red tip.
20Ms. Gunn saw Ryno to also have a gun. His was all black and bigger than Hines' gun. Ryno had a gun every time she saw him. Rock too had a gun, which was silver.
21Ms. Gunn identified Elijah Mohamed from going to Scarborough with Hines. Elijah was one of Hines' friends or associates. Her evidence was that he sold drugs for Hines. Mr. Mohamed was never at 45 Charlton, but she saw him downtown or in Scarborough. She carried drugs for Mr. Hines in her purse and Hines would hand them out to his dealers, which included Elijah Mohamed. On one occasion she brought Elijah Mohamed a shotgun. She had gone to a housing complex on Livonia in Scarborough. She saw Mr. Mohamed there, and was told that he lived there, and pointed his house out to the police after she began to cooperate with them. Ms. Gunn said that she was only in Mr. Mohamed's house briefly. She never actually gave the shotgun to Mr. Mohamed.
22Ms. Gunn also testified to being sexually assaulted by Mr. Hines with a gun, and being beaten by him with the assistance of Mr. Walton and Mr. Edwards. Ms. Gunn was also assaulted by Mr. Hines by means of having her hand forced into hot water, and was threatened.
Issues
23Mr. Mohamed asks to be discharged on the remaining charges against him, namely Counts 1 and 2 on the CDSA Information and Count 9 on the Criminal Code Information.
24Mr. Edwards asks to be discharged on counts 1, 2, 3, 4, 7, 8, 20, 27, 28 and 29 on the Criminal Code Information, as well as Counts 1 and 2 on the CDSA Information.
25Mr. Walton seeks his discharge on Counts 28 and 29 of the CDSA Information.
Principles
26Since R. v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, an accused at a preliminary hearing will be committed for trial if there is any evidence of the charge upon which a reasonable jury properly instructed could convict. What is sufficient evidence means evidence required to sustain a verdict of guilty beyond a reasonable doubt. In other words, "sufficient" refers to the "…goal or threshold of proof…", see R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679. When the case is one involving circumstantial evidence the preliminary hearing justice must engaged in a limited weighing exercise of the evidence. The justice must weigh the evidence "…in the sense of assessing whether it is reasonably capable of supporting the inference that the Crown asks the jury to draw." See R. v. Arcuri 2001 SCC 54. In that assessment the preliminary hearing justice must consider the evidence as a whole, see R. v. Turner 2012 ONCA 570. In this regard I caution myself against impermissible speculation, that is where a proposed inference cannot be reasonably and logically drawn from established facts. As Ducharme J. put it, "The Courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence." Rational explication is required and speculative imagination is impermissible. See R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.)
27Possession under s. 4(3) of the Criminal Code may be actual, or constructive. The case before me on the contested counts is alleged to be constructive possession, which requires knowledge and control. There is no evidence of impugned items found on the person of either Messrs. Edwards or Mohamed. In cases of constructive possession it is control over an area, and not mere responsibility which is crucial for determining possession, see R. v. Bertucci 2002 CarswellOnt 3344 (C.A.). When the contraband is hidden, mere presence near the room containing the item is of little to no value and does not permit an inference that the accused had knowledge or control of the thing, see R. v. Turner 2012 ONCA 4088.
28When the charge involves a "firearm" as defined in s. 84, whether it be a prohibited firearm or a restricted firearm the Crown must establish that it was an operable firearm. It may do this a number of ways: by expert evidence; by leading evidence of its operation by discharging a bullet; or through a witness knowledgeable about guns. See R. v. Osiowy (1997), 1997 ABCA 50 (CanLII), 113 C.C.C. (3d) 117 (Alta. C.A.); R. v. Covin (1983), 8 C.C.C. (3d) 140 (S.C.C.); R. v. Campbell, [1998] O.J. No. 4526 (OCJ).
29Where the offence involves possession of ammunition as defined under s. 84 the Crown need not go to the same level to prove the nature of the item as it does with firearms. Expert testimony is not required. I pause to note that the level of specificity as between ammunition and firearm under s. 84 is quite different. The term ammunition only requires "…a cartridge designed to discharged from a firearm…" As Hall J.A. said in R. v. Singh 2004 BCCA 428:
It seems to me that it is only common sense to hold that when experienced police officers describe the items found as being bullets and shells, as they did in this case, that it is a fair inference that they are talking about the type of items that the Criminal Code definition of ammunition encompasses. Of course, evidence might be adduced to rebut such an inference.
Principles Applied
30The evidence heard at this preliminary hearing establishes that Messrs. Mohamed and Edwards were in Apartment 403 when the police arrived and found the drugs and guns in the satchel. The satchel was unzipped and sitting on a Bar area within the living room area of the unit. It was out in the open and not hidden. Ms. Gunn gave evidence of her observations of Mr. Hines, Mr. Mohamed and Mr. Edwards. Mohamed and Edwards were observed by her to be involved in the illicit drug trade, and Mr. Edwards was seen by her to carry a handgun. Accordingly, considering all the evidence, there is some evidence from which a jury could infer that both Mr. Edwards and Mr. Mohamed had both knowledge and control of the satchel with the guns and drugs. Both Mr. Mohamed and Mr. Edwards will be committed for trial on Counts 1 and 2 on the CDSA Information. Mr. Edwards will be committed for trial on Counts 1, 2, 3, 4, 7, 8, 20, 27, 28 and 29.
31As regards Count 9 against Mr. Mohamed, the evidence of Det. MacKenzie that the items he seized were 22 calibre bullets is sufficient as proof that the seized items that fall within the definition of ammunition under s. 84 of the Criminal Code. The utterance from the woman leaving 21 Livonia, Unit 112 to Det. MacKenzie about where Mr. Mohamed slept is hearsay and I disregard it as inadmissible. There is evidence that documents with Mr. Mohamed's name on them were found in the upstairs bedroom. The evidence placing Mr. Mohamed in the upstairs bedroom is no more than that. There is no evidence about the date of the documents or their specificity. There is no evidence of anything more than that in the room belonging to Mr. Mohamed. To state the obvious, Mr. Mohamed was not on scene when the police entered Unit 112. The evidence is that the ammunition was found in the attic, which is accessible from a closed access in the ceiling of the closet in the bedroom. No one occupying the room would see the ammunition. Ms. Gunn's evidence that Mr. Mohamed was also involved in the drug trade with Mr. Hines and that he also was the destination of a shotgun is no evidence from which an inference could be drawn that Mr. Mohamed was in possession of the ammunition in the attic. Having considered all the evidence, there is no evidence from which a properly instructed jury could find Mr. Mohamed in possession of the ammunition in the attic of Unit 112. He is discharged on Count 9.
32As regards Mr. Walton and Counts 37 and 38, Ms. Kumaresan concedes that the gun seen by Ms. Gunn was not recovered or examined forensically. My review of the jurisprudence leads me to the conclusion that there must be some evidence that what Mr. Walton had with him was a "firearm" within the technical definition of that term in s. 84 of the Criminal Code and there is none. He is discharged of Counts 37 and 38 accordingly.
Disposition
33In the result:
Mr. Hines is committed for trial on Counts 1, 2 of the CDSA Information as well as the new trafficking charge, as well as Counts 1, 2, 3, 4, 7, 8, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 30, 32, 33, 35, and 36.
Mr. Mohamed is committed for trial on Counts 1 and 2 of the CDSA Information, but discharged on Count 9 of the Criminal Code Information.
Mr. Edwards is committed for trial on Counts 1 and 2 of the CDSA Information as well as the new trafficking charge as well as Counts 1, 2, 3, 4, 7, 8, 16, 20, 26, 27, 28 and 29 on the Criminal Code Information.
Mr. Walton is committed for trial on Count 16 of the Criminal Code Information but discharged on Counts 37 and 38.
34Order accordingly.
Released: August 27, 2015
Signed: "Justice David S. Rose"