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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(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.

Ontario Court of Justice

Date: 2018-05-02

Court File No.: Ottawa 17-RF1001

Between:

Her Majesty the Queen

— AND —

Ahmad Al Enzi and Tamara Bahlawan

Before: Justice P.K. Doody

Heard on: April 9, 10, and 11, 2018

Reasons for Judgment released on: May 2, 2018

Brigid Luke — counsel for the Crown

Michael Smith — counsel for the accused Ahmad Al Enzi

Jenny McKnight — counsel for the accused Tamara Bahlawan

1This was a preliminary inquiry into 30 counts of criminal offences. Counts 5, 23, 28 and 29 were withdrawn at the request of the Crown.

2The charges arise out of surveillance conducted over a period of some two months between September 26, 2016 and November 22, 2016 when search warrants were executed in three places – Apartment 311 at 1470 Heron Road, the residence of the defendant Ahmad Al Enzi at 21 Lilibet Crescent where he lived with his parents, and the residence of the defendant Tamara Bahlawan at 135 Shandon Avenue where she lived with her parents.

3Crack cocaine, oxycodone in 2 different types of tablets, and hydromorphone were found at the Heron Road apartment. Fentanyl, hydromorphone, oxycodone, and two separate stacks of bills (one totalling $1,170 and another totalling $3,900) were found at the Lilibet Crescent residence. A handgun and ammunition were found at the Shandon Avenue residence.

4The defendants were in the Heron Road apartment when it was searched. Both were arrested. A folding knife with a 3 ½ to 4 inch blade was found on Mr. Al Enzi's person when he was arrested.

5A number of admissions were made for the purpose of the preliminary inquiry:

(1) all of the substances which are the basis of the charges are admitted to be the drugs they are alleged to be;

(2) the handgun is a firearm in proper firing condition. It is a prohibited firearm because it is a handgun with a barrel length of 105 mm or less that is designed to fire a 25 or 32 caliber cartridge. The ammunition is "ammunition" as defined in s. 84 of the Criminal Code;

(3) there is a reasonable inference that the drugs seized in the search of the Heron Road apartment were for the purpose of trafficking;

(4) Mr. Al Enzi was on recognizance of bail at all relevant times and subject to the conditions set out in the charges.

6Counts 1 through 4 charge both defendants jointly with possession for the purpose of trafficking of the drugs found in the Heron Road apartment.

7Counts 6 through 10 charge both defendants jointly with offences relating to the handgun found at the Shandon Avenue residence.

8Counts 11 through 19, 26, 27, and 30 charge Mr. Al Enzi with breaches of recognizance of bail.

9Counts 20, 21, and 22, charge only Mr. Al Enzi with possession for the purpose of trafficking of the drugs found in the Lilibet Crescent residence.

10Counts 24 and 25 charge only Mr. Al Enzi with possession of proceeds of the two stacks of bills knowing that all or part of them had been obtained directly or indirectly from an offence punishable by indictment, particularized as possession of a Schedule I substance for the purpose of trafficking, contrary to s. 354(1)(a) of the Criminal Code.

11Evidence was led which would allow a trier of fact acting reasonably to find that the gun was stored in a careless manner, that it was being possessed by the individual who possessed it for a purpose dangerous to the public peace, and that neither of the defendants were the holder of a licence permitting them to possess the handgun.

12Mr. Al Enzi consents to his committal for trial on all counts except Count 25, possession of the stack of bills totalling $3,900 knowing it to have been obtained by crime. He submits that there is insufficient evidence upon which a trier of fact acting reasonably could find that he was in possession of that stack of bills.

13Ms. Bahlawan contests her committal to trial on all counts. The only issue argued by her counsel was whether there was sufficient evidence upon which a trier of fact acting reasonably could find that she was in possession of the handgun found in her residence or the drugs found in the Heron Road apartment.

14The issues before me, consequently, are whether there is sufficient evidence for a trier of fact acting reasonably to find:

(1) that Mr. Al Enzi was in possession of the stack of bills totalling $3,900;

(2) that Ms. Bahlawan was in possession of the handgun; and

(3) that Ms. Bahlawan was in possession of the drugs found in the Heron Road apartment.

Part 2: The Law

(a) The Law Dealing with Committals for Trial

15This is a preliminary inquiry. My role is limited to, in the words of s. 548(1)(a) of the Criminal Code, determining whether "there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction".

16This is an issue which severely constrains my discretion. I must decide whether a properly instructed trier of fact, acting reasonably, could convict on the evidence adduced before me.

17The evidence relied on by the Crown is circumstantial. I must weigh it in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence.

18It is necessary for me to set out the facts upon which there is direct evidence so that the reasonable inferences which arise from them can be understood.

19I do this with the caveat that I must accept the credibility of this evidence. I am not permitted to determine whether it is credible or reliable or is likely to be accepted by a reasonable jury properly instructed. Where there is contradictory evidence or evidence capable of supporting more than one reasonable inference, I must take the Crown case at its highest.

20The Supreme Court of Canada explained the limited weighing of circumstantial evidence which I must engage in as follows in R. v. Arcuri, 2001 SCC 54:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

21In conducting this limited weighing, I am required to take the case for the Crown at its highest, meaning that I must accept the credibility of the evidence relied on by the Crown and assume the reasonable inferences from the primary facts that are most favourable to the Crown. If I decide that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, I must commit the defendants to trial.

22It is irrelevant that the evidence may also support inferences inconsistent with guilt. Evidence that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the defendant be committed for trial. (R. v. Jackson, 2016 ONCA 736, at paragraphs 6-11, and cases cited therein)

23As the Supreme Court of Canada explained in R. v. Cinous, 2002 SCC 29 at paragraph 91:

The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.

24In conducting the limited weighing of circumstantial evidence to determine whether the evidence is capable of supporting a reasonable inference of guilt by the trier of fact, the question before me is, as set out by McLachlin J. at paragraph 20 of R. v. Charemski, [1998] 1 S.C.R. 678, "whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt" (emphasis added). Although McLachlin J. dissented on the result in this case, she made clear in her reasons on behalf of a unanimous court in Arcuri in 2001, at paragraph 27, that "there was no disagreement between the majority and the dissent as to the test that the preliminary inquiry justice must apply". (See R. v. Marushiak, unreported judgment of the Ontario Court of Justice, per Caldwell J., Dec. 14, 2016, Toronto Court file 4811 998 15 150 154 21 01-02)

25In determining whether reasonable inferences could be drawn from the established facts, I must avoid speculation. An inference based on speculation is not reasonable. As Justice Ducharme noted, in R. v. Alexander, [2006] O.J. No. 3173 at paragraphs 21 to 23:

21 While the jurisprudence is replete with references to the drawing of "reasonable inferences," there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning, which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather, the process of inference drawing involves inductive reasoning, which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

22 A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.

Equally important is Justice Watt's admonition that, "The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate."

23 The process of inference drawing was described by Doherty J.A. in R. v. Morrissey, 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.) as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White, 1994 NSCA 77, 89 C.C.C. (3d) 336 at p. 351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other.

26This process was much more succinctly described by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 at paragraph 30:

The inferences that may be drawn from [factual observations] must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

27The distinction between reasonable inferences and mere speculation was explained by the Court of Appeal in Jackson at paragraphs 12 to 14:

12 The distinction between evidence that cannot reasonably support the inferences necessary to establish the Crown's case and evidence that can support competing inferences including an inference of guilt can be hopefully made clear with two examples using facts similar to this case. In the first case, assume that the Crown's evidence consists of testimony that "A" and "B" were in the room with the deceased immediately before he was killed. No one else was in the room, and there was no evidence of any joint enterprise between "A" and "B". On this evidence nothing points to "A" as opposed to "B" as the killer. It would be unreasonable for a jury to infer from "A's" presence in the room (the primary fact) the further fact that he was the killer. "A" must be discharged at the preliminary inquiry.

13 In the second example, assume again that "A" and "B" were the only people in the room with the deceased immediately before he was killed and that there is no evidence of joint enterprise. There was evidence that as the police arrived moments later, "A" was seen leaving the room with the weapon used to kill "X" secreted upon his person. There was also evidence that "B" had been involved in a loud verbal altercation with "X" immediately before the killing.

14 On this evidence, one could reasonably infer from "A's" presence in the room and his departure from the room immediately after with the weapon used to kill "X" in his possession, that "A" had killed "X". One might also infer based on "B's" presence in the room and the prior altercation with "X", that "B" had killed "X". On the evidence described in the second scenario the evidence supports two reasonable conclusions, one of which is that "A" killed "X". A preliminary inquiry judge would be required to commit "A" for trial.

28Since this is the inquiry that must be undertaken, the rule in Hodge's Case, as explained by the Supreme Court in Villaroman, has no application at a preliminary hearing. The analysis described in that case of determining whether the defendant's guilt is the only reasonable inference which arises from circumstantial evidence, to be applied by the trier of fact, is irrelevant to the analysis which must be performed by a preliminary hearing judge. (Jackson at para. 15)

29In engaging in the required inquiry, however, I must consider "the whole of the evidence", whether led by the defence or the Crown. Even though credibility considerations are the exclusive province of the trier of fact, I still must consider whether the evidence, if believed, could reasonably support a finding of guilt. (Arcuri, at para. 32)

30Furthermore, as Watt J. held in R. v. Gollogly, [1989] O.J. No. 3127:

It is the total and cumulative effect of the circumstantial evidence which must be measured against the standard of s. 548(1). A compartmentalized and isolated analysis of each strand or item of circumstantial evidence is not to be undertaken by the provincial court judge presiding at a preliminary inquiry. Provided the total and cumulative effect of the circumstantial evidence could found an inference of guilt, an accused must be ordered to stand trial.

31As Caldwell J. put it in Marushiak, more simply than all of this, "The preliminary hearing judge does not determine guilt but she does determine if guilt is an available inference based on the evidence."

(b) The Law Dealing with Possession

32Section 2 of the Controlled Drugs and Substances Act adopts the definition of "possession" in s. 4(3) of the Criminal Code. That section reads:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of another person; and

(b) where one of two or more persons with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

33Subsection 4(3) of the Criminal Code creates three types of possession:

(a) personal possession as outlined in s. 4(3)(a);

(b) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and

(c) joint possession as defined in s. 4(3)(b). (R. v. Pham, 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), aff'd 2006 SCC 26)

34The Crown relies on joint possession. Joint possession requires knowledge, consent, and a measure of control on the part of the person deemed to be in possession. (Pham at para. 16 of Court of Appeal decision)

35Evidence of knowledge, like any other element of an offence, can be inferred from circumstantial evidence. As Watt J. held in R. v. Sparling, [1988] O.J. No. 107 (H.C.J.):

In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge.

Part 3: The Evidence

36The evidence I heard, in addition to what I have already described and the admissions made, was of a series of actions by the defendants over the period of time between September 26, 2016 and Nov. 22, 2016, and the locations and surrounding circumstances in which the drugs and gun were found.

37On September 26, 2016 Mr. Al Enzi and Ms. Bahlawan were at a movie theater when his cell phone rang. He left the theatre and went outside the back doors. He was seen engaging in a hand to hand transaction which a police officer with extensive experience with the illicit drug trade believed was a drug transaction.

38On October 13, 2016, Ms. Bahlawan left her home on Shandon Avenue and drove her red Honda to Mr. Al Enzi's home on Lilibet Crescent. Mr. Al Enzi came out of his house and got in the front passenger seat. Ms. Bahlawan drove to a strip mall at the corner of Albion and Walkley. They went into a Mac's Milk store. They came out and Mr. Al Enzi got in the driver's seat, with Ms. Bahlawan in the passenger seat. They drove to an Esso station at the corner of Conroy and Walkley. A few minutes later, a woman approached the driver's window and engaged in a hand to hand transaction with Mr. Al Enzi.

39The defendants left the Esso station and drove to the back parking lot of the apartment building at 1470 Heron Road. They parked the Honda and went to the 3rd floor of the apartment building. No one was with them.

40On October 24, 2016, Ms. Bahlawan drove her Honda to Mr. Al Enzi's home on Lilibet. She got out of the car and got in the passenger side. Mr. Al Enzi came out of his home and got in the driver's seat. They drove to Jasper Street and parked on the side of the road. A car parked behind them. A man got out, walked up to the driver's window, and engaged in a conversation with Mr. Al Enzi. He reached into his pants pocket and retrieved some money. He leaned into the driver's window and put the money in Mr. Al Enzi's hand. Mr. Al Enzi was seen moving around in the driver's seat. The man from the other car put his hand out and then closed it hard. He then returned to the passenger side of the car he had arrived in.

41The defendants then drove to Notting Hill Road and stopped at the curb. A Lexus pulled up behind them. The driver got out and got in the rear seat of Ms. Bahlawan's Honda. He was seen moving around. Mr. Al Enzi was seen moving around. Two minutes after he had driven his car up, the Lexus driver got out of the Honda, returned to his car, and drove away.

42An hour and a half later, Mr. Al Enzi drove the Honda, with Ms. Bahlawan in the passenger seat, to the Heron Road apartment building. They both got out and went in the front door. Five minutes later, a Kia pulled into the parking lot. A man got out, went into the apartment building, and knocked on the door of Apartment 311. He was admitted. Eighteen minutes later, he left the building, got into the Kia, and drove away.

43On October 26, 2016, Ms. Bahlawan left her home on Shandon Avenue and drove to Mr. Al Enzi's home on Lilibet. She got out of the driver's seat and got into the passenger's seat. Mr. Al Enzi came out of his home and got in the driver's seat. He drove to Jasper, near Notting Hill Road, and stopped the car. A man got out of a Toyota which had already been parked. He got in the rear seat of the Honda, and leaned forward between the front seats. Three minutes after getting in the Honda, he got out and returned to his car with his hands closed. He got in the driver's seat and drove away with 3 other people in the car. A short distance down the road, the Toyota did a U-turn and turned onto Notting Hill. The occupants were seen smoking something in glass pipes commonly used for smoking crack cocaine.

44One minute after the man from the Toyota left Ms. Bahlawan's Honda, a man got out of a Honda SUV parked in front of it. He got into the back seat of Ms. Bahlawan's Honda. Mr. Al Enzi was seen moving around in the driver's seat and looking back at the man, with his arms moving. The man leaned forward between the front seats. He left Ms. Bahlawan's Honda three minutes after he had entered and went back to his SUV with his hands closed. He got in the driver's seat and both vehicles drove away.

45Twelve minutes later, the defendants arrived at the Heron Road apartment building. They both went in the front doors and were admitted to the building after buzzing someone. They went up the stairs to the third floor. As they approached Apartment 311, the door opened. Mr. Al Enzi was heard saying "You can stop calling. I'm here."

46On November 3, 2016, Ms. Bahlawan left her home on Shandon, got in her Honda, and drove to Mr. Al Enzi's home on Lilibet. Mr. Al Enzi came out and got in the passenger side. They drove to the Heron Road apartment building. When they got there, two men were waiting for them. They got in the back seat. Three minutes later the two men left and went in to the apartment building. Ms. Bahlawan drove on to Heron Road, with Mr. Al Enzi in the passenger seat. She then stopped, got out, and switched places with Mr. Al Enzi. They drove to a Walmart parking lot near the cinema they had been at on September 26. A Hyundai parked beside them. A man got out of the Hyundai and into the rear seat of the Honda. Three minutes later, he got out and went into a nearby bank. The defendants went to a restaurant. Forty-five minutes later, they came out and drove to the cinema. They stood at the front doors. A man came up to Mr. Al Enzi and conducted a hand to hand transaction.

47On November 8, 2016, Ms. Bahlawan left her home on Shandon, got in her Honda, and drove to Mr. Al Enzi's home on Lilibet. Mr. Al Enzi came out and got in the passenger seat. They went to a store and a Dairy Queen. Mr. Al Enzi then drove to the Billings Bridge Mall with Ms. Bhalawan in the passenger seat. They parked at the rear of the mall and stayed in the car. Twenty-five minutes later, two men approached and spoke with Mr. Al Enzi. The two men placed a black bag in the trunk and got in the rear seat. One minute later, a Trail Blazer parked beside the Honda. The driver got out, approached Mr. Al Enzi, and engaged in a hand to hand transaction with him. He walked away, putting something in his vest pocket. Two minutes later, Mr. Al Enzi drove to the Heron Road parking lot. They all got out and one of the males, identified as Serge Parent, retrieved the bag from the trunk. The defendants and Mr. Parent went into the apartment building and entered Apartment 311.

48An hour and 40 minutes later, a man and a woman were admitted to Apartment 311. They were inside the apartment for 4 minutes and then left the building. Immediately after leaving, the woman lit what appeared to be a crack pipe. They both got into a vehicle. The man then lit what appeared to be a crack pipe.

49Forty minutes later, Mr. Al Enzi left Apartment 311 and approached a white Grand Am which had arrived just a few minutes before. He got in the rear seat. Two minutes later, he got out of the car. He put something in his right pants pocket. He then adjusted his crotch area with his left hand. He went back in the building. Forty minutes later, both defendants left the building and Ms. Bahlawan drove Mr. Al Enzi home and returned to her home.

50On November 21, 2016, Ms. Bahlawan left her home on Shandon Avenue and drove to Mr. Al Enzi's home on Lilibet. He got in the passenger seat. Ms. Bahlawan drove to the Heron Road building and parked the car. A man got out of another car and got in Ms. Bahlawan's Honda. Two minutes later, he got out, got back in his car, and drove away. Ms. Bahlawan and Mr. Al Enzi went into the building and into Apartment 311.

51Eleven minutes later, a car stopped in front of the building. A passenger got out of the car and walked into the building, talking on a cell phone. A man came out of Apartment 311 and went down the stairs to the front of the building. The two met and both went back up and into the apartment. Three minutes later, the passenger came out of the apartment, got back in the car, and it drove away.

52Fourteen minutes later, a Dodge Caravan parked in front of the apartment building. The driver got out, went into the building, and into Apartment 311. Ten minutes later, he left, got back in the van, and drove away.

53Two minutes later, a man with a backpack walked toward the front doors of the building. Another man came out of Apartment 311 and met the man with the backpack. The man with the backpack went up and into Apartment 311 while the man who had come from the apartment waited in the stairwell, looking outside and periodically opening the door. Two minutes later, the man with the backpack came out of the apartment, spoke with the other man, and left.

54On November 22, 2016, search warrants were executed at Ms. Bahlawan's Shandon Avenue residence, Mr. Al Enzi's residence on Lilibet, and Apartment 311 at the Heron Road building. Before the warrants were executed, Ms. Bahlawan had left her home and picked up Mr. Al Enzi at his home. He then drove them to the Heron Road building, where they entered the apartment.

55When the police entered Apartment 311, 4 people were inside – both defendants, Mr. Parent, and Nathan McCorkle. The apartment is small, consisting of a short entrance way/hallway, a small kitchen to its left, a living room directly ahead of the short hallway, and a bedroom and bathroom to the right. The 4 people were all in the living room/hallway area.

56A chair was placed against the wall of the living room facing the front door of the apartment. It could be seen by looking straight down the hallway when one entered the apartment. On top of the chair was a green torn piece of plastic bag, knotted at the top. Inside were three individual bundles. One contained 16 grams of crack cocaine; one contained 15 oxycodone pills of one brand and dosage and 6 pills of another brand and dosage; and the third contained 20 pills of hydromorphone. Two functioning digital scales were found in a nightstand type of furniture in the living room. The police also seized a rental agreement for the unit in the name of Mr. McCorkle. When they searched Mr. Al Enzi, they found $1,900 in cash, 4 ½ fentanyl patches, and a folding knife.

57One officer received a phone call, in the presence of the defendants. That officer then announced to all that a gun had been found at Ms. Bahlawan's residence on Shandon Avenue and that both Mr. Al Enzi and Ms. Bahlawan could be arrested for possession of the gun. Before he had been advised of his right to counsel and right to remain silent in respect of that charge, Mr. Al Enzi said that Ms. Bahlawan had nothing to do with the gun, that it was his, that he had slipped it into her room, and that she knew nothing about it. Mr. Al Enzi admitted, for the purposes of the preliminary inquiry, that this statement was voluntary.

58The handgun was found in a storage bin in a shelving unit in a corner of a bedroom in the basement of the Shandon Avenue residence. The bin contained socks. It also contained a Toys R Us bag. Inside that bag was a clear plastic bag with black writing on it. Inside that bag was the handgun, an empty magazine, and a box of ammunition. The bedroom was located off a large room in the basement of the home. The bedroom also contained female clothing, makeup, and shoes. Pinned to a wall was a photo strip of 4 photos, of the kind that would be produced by a photo booth. The photos showed Mr. Al Enzi and Ms. Bhalawan, smiling for the camera.

59When the residence on Lilibet, where Mr. Al Enzi lived with his parents, was searched, the police found 70 pills of hydromorphone, 81 pills of oxycodone, and 17 Diasapam pills in a Louis Vuitton bag under a bed in a basement bedroom. They also found under the bed a digital scale and, in a Gucci bag, 16.6 grams of a white powder commonly used to mix with cocaine. 3 cellphones were on top of the bed. A prescription pill container in the name of Serge Parent was also found.

60A black Michael Kors purse was found behind a chair in the living room. Inside it was a black and gold Michael Kors wallet belonging to Awatef Shelbaieh. Ms. Shelbaieh is Mr. Al Enzi's mother and was his bail surety. A large stack of $50 and $100 bills, totalling $3,900, was found in a sleeve in the purse. A copy of Mr. Al Enzi's recognizance of bail was also found in the purse.

Part 4: Analysis

61As I have indicated, the issue is whether, on the basis of all the evidence, there is a reasonable inference that Mr. Al Enzi was in possession of the $3,900 in cash found in the purse in the living room of his home, and that Ms. Bahlawan was in possession of the drugs found at Apartment 311 and the handgun found in the basement bedroom of her home. The issue is not whether those are the only reasonable inferences. Furthermore, in assessing the evidence, I am not to determine credibility. To put it simply, I must decide whether it would be speculation or a reasonable inference to find that the defendants were in possession of the cash and drugs.

62It is instructive to consider the evidence the Court of Appeal considered in the Pham case. The court (and, on appeal, the Supreme Court of Canada) upheld a conviction of possession of drugs for the purpose of trafficking in which the evidence of knowledge of and control over the drugs was entirely circumstantial. In that way, it was similar to this case. It was different, however, in that the issue was not whether the evidence met the lower standard applicable at a preliminary inquiry, but the higher standard required for a conviction.

63In Pham, the drugs were found in premises primarily occupied by the appellant and then later shared with another. Numerous visitors were seen coming to her door on a consistent basis. They approached the door, slipped money under the door, and a clear plastic bag would come out containing "white stuff". A neighbour saw the visitors participating in short exchanges with someone behind the door and was able, on occasion, to identify the accused as one of the people speaking. Twice, the neighbour saw the accused open the door. The first time, a man asked if $50 was enough and she let him in. The second time, the neighbour saw the exchange of money for a small plastic bag with white stuff in it. Police surveillance showed a number of persons, many known by the police to have problems with drug addiction, coming and going from the building.

64While the accused was absent, a person attended briefly at the unit and departed. The police arrested him and seized two pieces of crack cocaine. The apartment was searched with a warrant before the accused returned. Two pouches were discovered in the bathroom adjacent to the sink. Both were in full view. One, a cloth purse, held individually wrapped crack cocaine. The other, a make-up bag, contained $165 of Canadian currency, mostly in $20 bills.

65The majority of the Court of Appeal held that the following findings and evidence regarding both knowledge and control were sufficient to form a reasonable basis for the trial judge's conclusion that the accused was in constructive and/or joint possession of the cocaine, even if they had been brought into the apartment by her co-tenant:

(a) the accused elected to use her home as a drug trafficking centre, and was a key figure in the trafficking scheme carried on out of that centre; she continued to be the occupant of unit #4 and retained control of the apartment while she was away;

(b) both the black cloth purse containing the drugs and the pink make-up bag containing the money were found in full view in the bathroom, a common area of the apartment;

(c) the cloth purse and the make-up bag are consistent with the personal toiletries of the appellant and were found amidst her personal toiletries and make-up;

(d) there was no evidence of any men's toiletries in the bathroom;

(e) the main bedroom was littered with woman's clothing, contained documents (including a passport) in the accused's name, and was the source of drug-related "dime bags" and cut up newspapers and grocery bags of the type used to wrap a 40 piece of crack cocaine;

(f) the circumstantial evidence supported as the only logical inference a consistent awareness of, and participation in, all that occurred in her home on the part of the accused, and demonstrated much more than a quiescent or passive knowledge of the drugs, as well as an element of control over them;

(g) the role of the accused in the trafficking scheme strongly suggested power and authority over the disposal of the cocaine found, and an ability to withhold consent to the keeping of any drugs in her home; and

(h) the accused's co-tenant either filled the accused's shoes as the primary distributor during her absence or they jointly operated the trafficking scheme.

(a) The $3,900 Cash Found at Mr. Al Enzi's Residence

66Mr. Smith, Mr. Al Enzi's counsel, submits that there is no evidence to show that this was his client's money, or to show that it is proceeds of crime. The limited weighing of circumstantial evidence which I am required to undertake must lead to a conclusion that the evidence would not allow a trier of fact, acting reasonably, to convict. It would be speculation, he submits, for a trier of fact to conclude that Mr. Al Enzi was in possession of that money or that it is proceeds of crime.

67He points out that the money was found in a purse in the living room, not a bedroom. The purse contained a copy of Mr. Al Enzi's bail recognizance, but that was consistent with the purse being his mother's, since she was a surety.

68Ms. Luke, Crown counsel, submits that in order to make a finding on this issue I must consider the entire body of evidence.

69She submitted that the following evidence allowed for a reasonable inference that Mr. Al Enzi, together with Ms. Bahlawan, was engaged in an active drug trafficking business:

(a) Mr. Al Enzi was seen conducting a hand to hand transaction, a common way to sell drugs, with Ms. Bahlawan on Sept. 26, 2016;

(b) Ms. Bahlawan was seen driving her car to Mr. Al Enzi's house, picking him up, and either driving him or allowing him to drive her car with her as a passenger on 7 different days between October 13, 2016 and November 22, 2016;

(d) A total of 15 transactions with persons that occurred very quickly in the manner of drug transactions took place on those 7 dates;

(e) 2 of these were hand to hand transactions through the driver's side window of Ms. Bahlawan's car while Mr. Al Enzi was driving and Ms. Bahlawan was a passenger;

(f) 4 of these consisted of a person getting into the back seat of Ms. Bahlawan's car while Mr. Al Enzi was driving and Ms. Bahlawan was a passenger, and exiting within 2 or 3 minutes;

(g) 2 of these consisted of a person getting into the back seat of Ms. Bahlawan's car while she was driving and Mr. Al Enzi was in the passenger seat, and exiting within 2 or 3 minutes;

(h) 1 was a hand to hand transaction outside the car with Mr. Al Enzi while Ms. Bahlawan was present;

(i) Four consisted of persons entering Apartment 311 while both Mr. Al Enzi and Ms. Bahlawan were present and leaving shortly thereafter;

(j) After two of these transactions, the persons engaged in them were seen smoking what appeared to be crack pipes;

(k) Mr. Al Enzi and Ms. Bahlawan entered Apt. 311 together 6 times (including on November 22, the day of the searches) and were seen going to the third floor of the building on another occasion;

(l) Drugs were found on Mr. Al Enzi and in his residence;

(m) Drugs were found in plain view in Apartment 311 in a package which was in plain view of all in the apartment, including both Mr. Al Enzi and Ms. Bahlawan;

(n) $1,900 in cash was found on him when he was arrested, together with 4 ½ patches of fentanyl; and

(o) A handgun was found in a bedroom of Ms. Bahlawan's residence, which Mr. Al Enzi told police was his.

70In my view, this evidence, taken together, allows for a reasonable inference that Mr. Al Enzi and Ms. Bahlawan were engaged in a joint enterprise of trafficking in street drugs.

71The sale of illicit drugs is a cash business. People who engage in that business will have cash in their possession.

72The $3,900 in cash was found in a purse in a residence occupied by Mr. Al Enzi. Also in the purse was a copy of his bail recognizance. The fact that the money was in a purse, and the bail recognizance listed his mother as his surety, may give rise to a reasonable inference that the purse was his mother's, since she lived in the house as well. But drugs were found in a basement bedroom of the house, also in a bag of a type commonly used by women, together with scales and a substance used for cutting cocaine. In my view, it is a reasonable inference that the money was in Mr. Al Enzi's possession – that he knew of it, and exercised a measure of control over it, since it was in his house. It is also a reasonable inference that the money was proceeds of drug trafficking. Those inferences are reasonable because of the totality of the evidence that supports an inference that he was engaged in the drug trafficking business and received significant amounts of cash as a result.

73This is much like the second example given by the Court of Appeal in Jackson. The evidence supports two reasonable conclusions. One is that Mr. Al Enzi knew that the money was in the purse, knew that it was obtained as a result of possession of drugs for the purpose of trafficking, consented to it being in the purse, and had some measure of control over it. Since I am not allowed to apply the principle set out in Villaroman, I must commit Mr. Al Enzi to trial on count 25, possession of the $3,900 knowing it to have been obtained by the possession of a Schedule I drug for the purpose of trafficking.

(b) The Drugs Found at Apartment 311

74Mr. Al Enzi has consented to committal on the charges against him of possession of these drugs for the purpose of trafficking. The issue is whether Ms. Bahlawan should be committed for trial on those charges.

75Ms. McKnight, counsel for Ms. Bahlawan, concedes that the evidence supports an inference that Ms. Bahlawan knew the cocaine was there. The bundle was in plain view. There was evidence from which an inference could be drawn that Ms. Bahlawan knew that cocaine trafficking was taking place in her presence.

76She submits, however, that the evidence does not allow for a reasonable inference that she had any measure of control over crack cocaine in the bundle. Ms. McKnight points out that no key for the apartment was found on Ms. Bahlawan when she was arrested. She submits that there is no evidence that Ms. Bahlawan was the drug trafficker, or that she touched the drugs or any money. No drugs were found on her person or in her car. Nor was any drug paraphernalia. No cash in large amounts was found on her or in her possession.

77Ms. McKnight also submits that the evidence does not support an inference that Ms. Bahlawan knew that the drugs other than cocaine were in the bundle found in Apartment 311. She points out that while the evidence of the meetings with individuals in the presence of Mr. Al Enzi, and the individuals smoking what appeared to be crack on two occasions after these meetings, could give rise to a reasonable inference that Ms. Bahlawan knew of the cocaine, that evidence does not allow a reasonable inference of knowledge of other drugs.

78In my view, these submissions fail to take into consideration all of the evidence. That evidence which I have described gives rise to a reasonable inference that Ms. Bahlawan and Mr. Al Enzi were engaged in a joint enterprise to traffic in drugs. The evidence shows that her role in the enterprise was different from Mr. Al Enzi's, but it certainly supports an inference that she assisted it – that she facilitated that enterprise by providing her vehicle as transportation, actually driving it on two occasions to locations where what appeared to be drug transactions took place, and being with him on every occasion but one during which activity consistent with drug transactions took place.

79Drugs were found in the apartment to which they had regular access over the course of the surveillance. All of the drugs – the cocaine, two types of oxycodone, and hydromorphone – were individual bundles packed together in the same large bundle. That apartment was the location of 4 of the suspected drug transactions, all of which occurred while she was in the apartment with Mr. Al Enzi.

80It is a reasonable inference that she was engaged in drug trafficking together with Mr. Al Enzi, that she knew of the drugs in the apartment, and that she had some measure of control over the drugs which were used for that enterprise and found in plain view while she was in the apartment. It is a reasonable inference that these inferences arise for all of the drugs. There was evidence that following two of the suspicious transactions, the individuals taking part were seen to smoke what was thought to be crack cocaine. That does not prevent an inference that the other suspicious transactions involved other illicit drugs. The presence in the apartment of other drugs, combined with all of the other evidence about transactions involving that apartment and the defendants who had access to that apartment, provides the basis for such an inference being reasonable.

81Ms. Bahlawan will be committed to trial on the counts against her charging her with possession of drugs for the purpose of trafficking.

(c) The Handgun

82Ms. McKnight submits that the evidence does not allow a reasonable inference that Ms. Bahlawan knew of the gun, consented to it being in the location in which it was located, or that she had any measure of control over it.

83She points out that the gun was hidden, not in plain view. It was concealed inside a white opaque bag, in a container in which socks were stored. She submits that there are only two facts that relate to the bedroom in which the gun was found that relate in any way to Ms. Bahlawan – it was in her home, and there was a photo booth strip of pictures of Ms. Bahlawan and Mr. Al Enzi. The evidence of a woman occupying that bedroom – such as makeup, female clothing, and women's shoes – was equally consistent with the bedroom being Ms. Bahlawan's mother's, since the evidence was that she lived in that house as well, along with Ms. Bahlawan's brother and father.

84Ms. McKnight also submits that the evidence that Mr. Al Enzi's statement that Ms. Bahlawan had nothing to do with the gun, that it was his, that he had slipped it into her room, and that she knew nothing about it, is admissible in evidence under the principled exception to hearsay doctrine. Ms. McKnight submits that the evidence is necessary, because Ms. Bahlawan cannot call her co-accused, Mr. Al Enzi, as a witness. She submits that it is reliable because of the way it was made – to police officers, immediately upon mention being made of the firearm being found, and that it was contrary to Mr. Al Enzi's interests. She submits that this is direct evidence that ought to be taken into account to counter the circumstantial evidence that Ms. Bahlawan knew of the gun.

85I will deal with the latter point first. The general rule is that out of court statements made by a party, including a co-accused, may be adduced as evidence of their truth by an opposite party. Statements admitted on that basis may in general only be used in deciding the case of the accused who made the statements. The other party may, however, seek to have the statements considered for their truth under the principled exception to the hearsay rule. (R. v. Waite, 2014 SCC 17)

86I agree with Ms. McKnight's submission that the statement by Mr. Al Enzi is necessary. Ms. Bahlawan cannot call him as a witness because he is a co-accused.

87I find, however, that the statement does not meet the standard of reliability required for admission under the principled exception to the hearsay rule.

88It was not recorded, either by audio or video. It was not under oath or solemn affirmation. Most importantly, it was not cross-examined upon, and the Crown will be unable to cross-examine Mr. Al Enzi on it unless he chooses to testify.

89This is important because, as the Supreme Court of Canada explained in R. v. Baldree, 2013 SCC 35 at paragraphs 31 and 32, cross-examination allows evidence to be tested in four specific areas of concern: the witness may have misperceived the facts to which the hearsay statement relates; even if correctly perceived, the relevant facts may have been wrongly remembered; the declarant may have narrated the relevant facts in an unintentionally misleading manner; and the declarant may have knowingly made a false assertion. Cross-examination of the declarant has the potential to show whether any of these concerns are justified in respect of the particular statement in issue.

90The last of these concerns plays a large role here. Mr. Al Enzi was in a relationship with Ms. Bahlawan and may have wanted to protect her. This may have led him to lie when he made the statement. Without cross-examination, the trier of fact will not be able to properly have the statement tested.

91Nor do the circumstances in which it was made provide indicia of reliability. This statement does not meet the Wigmore test adopted by the Supreme Court of Canada in R. v. Couture, 2007 SCC 28. Charron J. wrote for the majority at paragraphs 98 to 100:

Where there is no real concern about a statement's truth and accuracy because of the circumstances in which it came about, there is no good reason why it should not be considered by the trier of fact, regardless of its hearsay form.

In some cases, the trustworthiness of the statement itself may be combined with the presence of adequate substitutes for testing it to meet the criteria of reliability. … [I]n assessing the statements' trustworthiness under this branch of the reliability test, it is important to keep in mind that the evidence, if admitted, will go largely untested. Because there are no adequate substitutes for testing the evidence on the facts of this case, there must be some compelling feature about the statement that commands sufficient trust in its truth and accuracy to warrant its admission regardless. Wigmore explains it well in these words:

There are many situations in which it can easily be seen that such a required test [i.e. cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance) in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured.

Hence, what must be shown is a certain cogency about the statements that removes any real concern about their truth and accuracy. …

… [T]he principled exception to the hearsay rule is not intended to supplant all other rules of evidence. Nor is it intended to provide a substitute for the usual rigours of the criminal trial process.

92Mr. Al Enzi made the statement very shortly after it had been announced that the gun had been found. This does not provide the necessary comfort to allow a "sceptical caution to look upon it as trustworthy". It was not unreasonable for Mr. Al Enzi to have realized, while he was waiting in the apartment between 6:58 p.m. when the tactical officers searched the apartment and 7:50 p.m. when an officer announced that the gun had been found, that searches were probably being conducted on both his and Ms. Bahlawan's residence. He had plenty of time to decide what to say if he learned that the gun had been found.

93In my view, the statement is inadmissible to assist Ms. Bahlawan.

94In any event, even if the statement were admissible for this purpose, I could not give it any weight. On a preliminary inquiry, I am required to take the Crown's case at its highest. Its highest, in respect of this statement, would be that the trier of fact disbelieved the statement. That could happen. Consequently, I cannot consider it when determining whether the evidence is sufficient to justify committal.

95I do not accept Ms. McKnight's submissions that the circumstantial evidence does not permit a reasonable inference that the gun was located in Ms. Bahlawan's bedroom. There is circumstantial evidence which could support such an inference even if I was to limit my consideration to what was found in the residence. The bedroom was in the house in which Ms. Bahlawan lived. The gun was in a container in the bedroom which contained socks. The bedroom also contained female clothing, makeup, and shoes. It also contained, pinned to the wall, a photostrip showing Mr. Al Enzi and Ms. Bahlawan smiling together.

96That evidence allows an inference that the room was Ms. Bahlawan's bedroom. It also allows an inference that she knew the gun was there, because it was in a bag stashed away with socks. It also allows an inference that she had some measure of control over it, since it was in her room. Those inferences are reasonable and not speculative.

97The inference is even greater when one considers all of the evidence, including the evidence that allows an inference that Ms. Bahlawan was a willing participant in a drug trafficking enterprise with Mr. Al Enzi. The drug business often involves guns. It is a reasonable inference that a gun found in a house in which a drug trafficker lives is there with the knowledge, consent, and control of the drug trafficker.

98Ms. Bahlawan will be committed to trial on the gun offences.

Part 5: Conclusion

99Mr. Al Enzi and Ms. Bahlawan are committed to trial on counts 1, 2, 3, 4, 6, 7, 8, 9, and 10.

100Mr. Al Enzi is also committed to trial on counts 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, and 30.

Released: May 2, 2018

Signed: Justice P. K. Doody

R. v. Al Enzi and Bahlawan, 2018 ONCJ 326

Case Summary