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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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 —
Christian Gabrielle DeRose
Before: Justice A. Calsavara
Heard on: August 5 and 6, 2020
Reasons for Judgment on Committal released on: August 17, 2020
Counsel:
- Robert Kraska, counsel for the Crown
- Enzo Battigaglia, counsel for the accused
Judgment
I. INTRODUCTION
1On June 20, 2019, at about 8:30pm, the defendant—Mr. DeRose—drove into a parking lot of a townhouse complex in Milton in his black Audi sedan and reversed into a parking spot. Before he had a chance to do whatever it was he went there for, unmarked police vehicles suddenly emerged, boxed in DeRose's vehicle, approached the driver's door and arrested him for drug trafficking and other offences. Mr. DeRose was caught off guard and not listening to the police commands. Police described him as shocked.
2Search incident to arrest revealed two dime baggies containing cocaine in Mr. DeRose's possession. One dime bag was in his pocket and contained 0.4 grams. The other was inside a Gucci wallet amongst several pieces of identification taken from Mr. DeRose's pocket and contained 0.3 grams of cocaine. Both dime baggies, according to police description, were printed with a similar marijuana leaf symbol. At the time, Mr. DeRose was also holding cash in two places: $560 in his pocket in bills of 100s, 50s and one $10 bill and $280 in his Gucci wallet in bills of 50s, 20s and one 10.
3Unbeknownst to Mr. DeRose, the police had been watching him not just that day, but for the last six weeks. They were investigating him for drug trafficking and by June 20 had obtained a search warrant for his black Audi and a residence associated to him. Following this arrest, police executed these warrants. Inside the residence, police seized several items of contraband including: over 25 grams of cocaine in various locations in varying amounts, 3 oxycodone pills, 2 scales, packages of "numerous" dime bags with a printed marijuana leaf symbol on them, and what was described by police as a Ziplock bag containing 71.1 grams of an unknown white substance, suspected to be of cocaine – but never tested.
4The Crown seeks committal against Christian DeRose for possession of the cocaine seized from this residence, for the purpose of trafficking. He also seeks committal for possession-simplicitor arising from the presence in this home of the three oxycodone pills. The Crown argues, in essence, that constructive possession of these substances is one of the reasonable inferences a properly instructed jury could make from the totality of the evidence called at this Preliminary Inquiry. Moreover, the constellation of facts, in the evidence taken at its highest for the Crown, would allow for a finding that Mr. DeRose possessed this cocaine for the purposes of trafficking.
5The defence argues the evidence is incapable of supporting the inferences sought by the Crown on the essential elements of both offences. He asserts that any finding that Mr. DeRose had knowledge and control of any of the contraband in the home is speculative and it would be an error for me to commit on either offence. In addition, he argues that there is no evidence that this cocaine in the home was possessed for the purpose of trafficking, noting no expert had been called. Lastly, with respect to the cocaine, Mr. Battigaglia, on behalf of Mr. DeRose asserts that the Crown has failed to show that the drugs seized by the police were in fact the substances tested by Health Canada to contain cocaine (continuity argument). As for oxycodone pills, the defence argues that the crown did not adduce any evidence to show that the possession of this controlled substance was unlawful —as opposed to being lawfully prescribed to one of the occupants in the home and a discharge on this count is also required on that issue alone.
6I see no merit in the defence argument on the issues of continuity, indicia of trafficking relating to the drugs in the home, or on the unlawful component of the oxycodone count. For the reasons that follow, however, I do agree with the defence that on this record the evidence falls short of supporting the inference drawing necessary to make out the essential elements of knowledge and control on both counts.
II. OVERVIEW AND APPLICABLE LEGAL PRINCIPLES
Test for Committal
7Mr. DeRose is facing two counts with an offence date of June 20, 2019: possession of cocaine for the purpose of trafficking, contrary to s. 5(2) and simple possession of oxycodone pursuant to s. 4(1) of the CDSA. At the start of the preliminary hearing, Mr. DeRose additionally faced a count of trafficking with the same offence date, but the Crown withdrew this charge at the close of its case with leave of the Court.[1]
8Two police officers engaged in the surveillance, arrest and execution of the search warrants testified on behalf of the Crown as evidence in support of its case. Aside from these two officers, the Crown filed a series of Certificates of Analyst to establish the nature of the various substances seized as well as two affidavits from property clerks with the Halton Regional Police Service pursuant to s. 53 of the CDSA to establish continuity of the possession of the drugs seized by the police up to and after testing by the designated Analysists. No other document nor photograph was introduced into evidence through witnesses by the Crown. Nothing was filed under s. 540 of the Code.
9The evidence was completed on August 5th, 2020. Submissions were made the next day.
10The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a motion for a directed verdict; namely, 'whether or not there is any evidence upon which a reasonable jury, properly instructed could return a verdict of guilty.' Under this test, the preliminary inquiry judge must commit the accused to trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction: R. v. Arcuri (2001) S.C.C. 54 (S.C.C) at p. 7, para. 21; R. v. Charemski, [1998] 1 S.C.R. 679 (S.C.C.); United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.).
11The test for committal is the same whether the evidence is direct or circumstantial. In the case of circumstantial evidence, an accused must be committed to stand trial where guilt is one inference that a jury could draw from the proven facts. The fact that there are other inferences, which could also be drawn from the facts, which are inconsistent with a finding of guilt, does not lead a Court to discharge the accused: R. v. Charemski, [1998] S.C.J. No. 23; R v. Monteleone, [1987] S.C.J. No. 52; Arcuri, supra.
12In order to determine whether an inference can be drawn from a specific set of facts, the Court is inevitably required 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. The Court 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. It is an error to weigh the competing inferences or to accept one inference over another: Arcuri, supra.
13A judge must not draw determinate factual inferences, but instead must reach conclusions about the field of factual inferences that could reasonably be drawn from the evidence. The limited weighing function of the preliminary inquiry judge "involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence adduced at the inquiry considered as a whole." It would be an error to look at the evidence in isolation in determining whether a particular inference could be drawn or not. The whole of the evidence must be considered: R. v. Hall, [2015] O.J. No. 1439 (Ont. C.A.) at para 5; R. v. Cinous, 2002 SCC 29 , [2002] S.C.J. No. 28; R. v. Sazant, 2004 SCC 77 , [2004] S.C.J. No. 74 (S.C.J.); R. v. Deschamplain, 2004 SCC 76
14In R. v. Kelly 2017 ONCA 920, Doherty J.A., at paragraph 19, succinctly reiterated this test in the context of a directed verdict motion:
When the defence moves for a directed verdict of acquittal at the end of the Crown's case, the trial judge must decide whether there is a basis in the evidence upon which a reasonable jury, properly instructed, could convict. In performing that task, the trial judge does not make findings of fact or credibility, but considers whether a reasonable jury, properly instructed, could, on the entirety of the evidence, favourable and unfavourable to the accused, conclude that the Crown has established guilt. The trial judge must view the evidence in the reasonable light that is the most favourable to the Crown
15Choosing one reasonable inference that leads to a discharge over another that would support a committal may amount to a jurisdictional error, if the preliminary hearing judge, in effect, rejects other inferences in preference to the factual conclusions he or she draws. The preliminary hearing is not the forum for weighing competing inferences or for selecting among them. That is the province of the trier of fact at trial. If the preliminary inquiry judge goes beyond this limited mandate and encroaches on the role reserved for the trier of fact at trial, then the judge commits a jurisdictional error: Sazant.
16A Hodge's[2] or Villaroman[3] analysis is reserved for the trier of fact as it is an application of the proof beyond a reasonable doubt standard. Subjecting evidence at a preliminary hearing to a Villaroman inquiry—asking whether an inference supporting guilt is the only reasonable inference to be drawn from the evidence as a whole—is an excess of a court's jurisdiction.
17For a properly constructed jury to find Mr. DeRose guilty of Possession of a controlled Substance for the Purpose of Trafficking, there must be evidence capable of establishing the following elements:
(i) That the defendant was in possession of a substance
(ii) The substance was cocaine
(iii) That the defendant knew that the substance was cocaine
(iv) That the defendant had possession of cocaine for the purpose of trafficking in it
18'Possession' and 'for the purpose of trafficking' are the elements requiring analysis in this case.
Proving Possession
19'Possession' is defined in s. 4(3) of the Code and includes: personal possession, constructive possession, and joint possession. Any of the three can support the essential element of possession. The Crown's case against Mr. DeRose engages both personal possession (in his pocket/wallet on arrest) and constructive (larger amounts of cocaine in a residence and oxycodone pills). Knowledge and control are essential elements to both personal and constructive possession: R. v. Lights, 2020 ONCA 128; R. v Morelli, 2010 SCC 8.
20Personal possession requires an accused to know she or he has it and know what it is, while having control over it. Constructive possession is where an accused does not have physical custody of it, but has it elsewhere. 'Constructive possession is complete where an accused: (i) has knowledge of the character of the thing, (ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the pace belongs to or is occupied by the accused; and (iii) intends to have the thing in the place for the use or benefit of the accused or of another person': Lights, supra at para 47; Morelli, supra.
Proving the Possession was for the Purpose of Trafficking
21"Traffic" is defined in s. 2(1) of the Controlled Drugs and Substances Act and sets out the varying ways one can 'traffic'. Like possession, this element can be proved with direct or indirect evidence. No evidence of trafficking per se is required. An intention to do one of the enumerated things in s. 2(1) which constitutes trafficking is all that is required to establish this particular element, whether or not the possessor could or would be successful in trafficking the substance. In this case, there is no direct evidence of an intention to traffic or of trafficking. The purpose of possessing something can be inferred from conduct, the quantity of the drug, the value of the drug, or other items with the drug that are used with the selling, giving, transferring, transporting, sending or delivering.
III. SUMMARY OF THE EVIDENCE RELEVANT TO ISSUE OF COMMITTAL
22Sometime before May 8, 2019, D/C Bokstein of the Drug and Human Trafficking Unit of Halton Regional Police Service received information which stemmed from a confidential source that Mr. DeRose was trafficking in controlled substances and began an investigation.
23On May 8th, the officer confirmed through police data bases that Mr. DeRose resided at 765 Boughton Cres, Milton and attended the area and made observations which he believed confirmed Mr. DeRose's connection to that residence. He in fact saw the accused, Mr. DeRose exit the premise at some point and enter a black Audi that had been parked in the driveway and drive away from the residence.
24Officer Bokstein knows Mr. DeRose from a prior investigation from 2017; but I have heard no details about the evidence supporting his conclusion that Mr. DeRose lived at 765 Boughton during that earlier investigation, other than he alluded—in passing during his testimony—to being involved in a search of the residence at that time as well. No evidence was adduced to show, whether or not, the officer's conclusions were based on first-hand, non-hearsay sources concerning who lived in the home on that prior occasion.
25The officer applied for and was granted a tracking warrant for this Audi associated to Mr. De Rose and thereafter continued the trafficking investigation, principally through surveillance alone and then later aided by the placement of a covert camera focused on the street and driveway out front of 765 Boughton. Ultimately a team was formed to aide in the surveillance of Mr. DeRose's activities which was both mobile and static in nature.
26The significant observations made by D/C Bokstein and/or his team, adduced at this hearing are summarized as follows:
(a) May 15 – police observed Mr. DeRose return to 765 Boughton in this same black Audi sedan and enter the home. The police also noticed an Infinity parked out on the road. Sometime later, Mr. DeRose exited the residence in the company another male, who according to D/C Bokstein resembled the RO of the Infinity parked out front, as per a police data-bank search. The officer, however, was not able to confirm this male's identification. The two of them—that is Mr. DeRose and the male believed to be associated to the Infinity—left together in the black Audi. Mr. DeRose was driving. By the time D/C Bokstein caught up with them, the Audi was in the parking lot of LaRose Bakery in Milton. He observed Mr. DeRose walk over to another vehicle. His view was obscured such that he could not ascertain the occupant(s), make, model nor the licence plate of that vehicle, but what he did see was Mr. DeRose lean into the driver's window of that car for about 10 seconds then walk back to the trunk of his car. It appeared to officer Bokstein that Mr. DeRose took a lint brush from his trunk and wipe his shirt with it. Mr. DeRose then went inside LaRose bakery with his passenger. Ultimately both males returned to the Boughton Cres residence in that Audi. Again Mr. DeRose was driving. From surveillance, police observed another male attend the residence later that night - possibly, according to D/C Bokstein, Mr. DeRose's brother.
(b) May 20 – police observed Mr. DeRose return to this residence at 765 Boughton in the same black Audi sedan. Police also observed a second male attend this residence later in a different Audi – a man officer Bokstein identified as Mr. DeRose's father. Another male also drove up, parked on the street, and attended the residence that day. He was driving a black infinity.
(c) May 23 – with the help of the tracker, the police picked up surveillance of Mr. DeRose's black Audi near Main and Thompson in Milton and followed it to 765 Boughton. Mr. DeRose was the driver and lone occupant. After parking in the driveway, he exited the car and went inside the residence. After some unknown interval, Mr. DeRose left the house again in the black Audi. The police followed him a short distance to another residential area on Bickerman Way. The Audi remained parked on the street all told for 10-15 minutes. Within a few minutes of that time, Mr. DeRose walked up to a residence and returned 10 minutes or so later and drove away and back to the residence at 765 Boughton. A blue Honda sedan was parked out front and an unknown male exited that vehicle and entered the Boughton residence for about 10 minutes, then drove away in that blue Honda. Still on this same day of May 23rd, after some unknown interval, police observed Mr. DeRose leave the Boughton home and drive in the Audi to a visitor parking lot at a townhouse complex near Main and Livingston. Mr. DeRose reversed into the parking spot and remained inside the car with the lights on. A few minutes later a blue BMW drove into the spot next to the Audi. Mr. DeRose got into the rear of that BMW and remained there for 20-30 seconds and left. The rear door remained open the whole time. Mr. DeRose then walked toward the store fronts on Main street leaving his car in the townhouse complex. The BMW was driven away.
(d) May 24 – from the recording of the covert camera, D/C Bokstein saw a light SUV stop outside the residence at 765 Boughton. It was around 10pm. It was dark. Neither a licence plate nor the driver could be ascertained. When that car arrived, however, the lights of the Audi flashed. This unknown person from the SUV went to the driver's side of the Audi and using what appeared to be the flashlight app from his phone, leaned into the driver's seat and then returned to his light coloured SUV and drove off. Officer Bokstein, who was observing this camera footage on May 28, could not identify the male. From watching the footage of May 24 in entirety, however, he testified that he observed Mr. DeRose arrive at the residence and enter the home at 5:48pm, without exiting again prior to the SUV's attendance. Sometime after the unknown male in the light SUV left, Mr. DeRose exited the residence and drove away in his Audi.
(e) May 25 – again as viewed from the covert camera footage on May 28, D/C Bokstein observed a white KIA stop outside the Boughton residence. A male exited that car and went inside 765 Boughton and re-emerged shortly after, along with Mr. DeRose; and as described by the officer appeared to him to engage in a hand to hand exchange. No detail or explanation of what he meant by exchange was adduced since as the officer fairly agreed, he never saw anything in accused's hands—drugs or money or anything else—during these observations. Mr. DeRose went to his trunk, then the two got into the Kia and drove off. Mr. DeRose sat in the front passenger seat. The unidentified male was in the driver's seat.
(f) May 28 – D/C Bokstein and his team conducted mobile surveillance. They observed Mr. DeRose at about 5:40pm arrive at the Boughton residence as a passenger in his father's Audi. Mr. DeRose's own black Audi was already parked in the driveway of the residence at the time. Mr. DeRose left the residence a short while later on his own in the black Audi and was followed by the police to a lot attached to a commercial plaza at Holly /Derry road. Mr. DeRose parked his Audi and walked over to and entered a passenger seat of a blue Honda also parked in the lot. Mr. DeRose was observed smoking inside the blue Honda along with its' other occupant. After 50 minutes, Mr. DeRose returned to his own car and drove off. The blue Honda remained in the lot. Mr. DeRose was observed by another officer on the team – D/C Chimenti – stop at a Petro Canada gas station, then proceed to another residence at MacNeill street near Marshall in Milton. Mr. DeRose walked to one of the houses, before returning to his Audi two minutes later and returned to 765 Boughton.
(g) May 29 – police mobile surveillance picked up observations of Mr. DeRose in the Audi at Derry and James Snow Parkway and return to the 765 Boughton residence. Mr. DeRose was observed to leave this residence again in the Audi and drive to a residence on Middleton. He parked his car, walked to the front of a residence there and re-emerged 5 minutes later and drove back to the Boughton residence.
(h) May 31 – the officers observed Mr. DeRose being driven to the Boughton residence in another Audi. Officer Bokstein identified Mr. DeRose's father as the driver of that car. Mr. DeRose went inside 765 Boughton and his father drove away.
(i) June 19 – police set up surveillance on 765 Boughton. Police observed Mr. DeRose arrive at this address along with his father, in his father's vehicle. Both go inside. Shortly after, the accused's father and brother left the residence. An unknown female then arrived in a vehicle, parked down the street and entered the residence. Both Mr. DeRose and this female exited the house and left in the black Audi, driven by Mr. DeRose. Police maintained surveillance and followed them to the same commercial plaza near Holly and Derry road and parked near the same blue Honda as Mr. DeRose did some three weeks prior, on May 28. Both Mr. DeRose and the female entered the blue Honda. There were two occupants already in that car. Mr. DeRose and the female returned to the black Audi 40 minutes later and drove away. Officers stayed and shifted the focus of their surveillance on the blue Honda. Officer Bokstein testified that another vehicle attended the lot and parked beside the blue Honda and he observed what he suspected to be a drug transaction between the occupants of these two vehicles on account of the proximity to each other and the short duration of the interaction.
Of note, other than the observation from the camera footage of the May 25 interaction between Mr. DeRose and another male in the driveway, neither officer testified to seeing any transactions or anything in the hands of Mr. DeRose during their surveillance of what they suspected to be drug transactions. Officer Bokstein explained that for the most part he was not in a position to observe such detail. Even with the May 25 'hand to hand' interaction, no object was seen.
(j) June 20 – the police applied for a CDSA search warrant of 765 Boughton and the black Audi police observed repeatedly driven by Mr. DeRose. Police set up outside the residence in anticipation of the warrant. The accused's father arrived at the residence along with Mr. DeRose around 6pm. Mr. DeRose, the accused before the court, was observed to leave the house and drive in his Audi to a residence at Greenlees in Milton. Mr. DeRose exited his car and walked to a garage at #451 for a few minutes before returning to his Audi. The police noticed that the garage door closed as Mr. DeRose walked back to his car. Next, police observed Mr. DeRose travel to the same Middleton Cres., residence as he attended some 3 weeks ago on May 29. Police from the surveillance team saw Mr. DeRose enter the residence, then exit 30 or so minutes later. Mr. DeRose then drove to the same lot of the townhouse complex he had been to before at Livingston and Main. There were two cars parked on either side of him.
27The police immediately moved in to arrest Mr. DeRose for possession for the purpose of trafficking, trafficking and fail to comply with probation. Mr. DeRose was in the driver's seat and appeared to be caught off-guard.
28From a search incident to arrest, police seized from Mr. DeRose: a Gucci wallet containing $280.50, several pieces of ID, including a DL in the accused's name, an LA Fitness staff ID card, a parking ticket and a dime bag which later tested as cocaine weighing 0.3 grams inside a baggie with a pattern of a leaf symbol, a bundle of $560 dollars from his pocket and another dime bag in the accused's pocket containing what later tested cocaine and weighing 0.4 grams of cocaine. This baggie had a similar pattern on the package – that is a marijuana leaf symbol. A phone was seized from Mr. DeRose's Audi.
29Following this arrest, the team moved to 765 Boughton to execute the warrant at 9:25pm. At the time, two males were inside the residence who police identified as Mr. DeRose's father and younger brother. No evidence was given about where in the home these two men were at the time the police entered the home.
30Officer Chimenti testified that before conducting the search, he both videotaped the residence and took photographs. No photos were entered as exhibits at this preliminary hearing. No evidence was adduced about the specifics of the home. No evidence was given about the style of home: detached, semi-detached, townhouse or the size of the driveway. For instance, I do not know how many levels there were in the house, how many bedrooms it had or if there is a finished basement. Similarly, no evidence was adduced about the contents or belongings of any room, including bedrooms, except for the following:
(i) Officer Bokstein searched a bedroom which he alluded to being the same bedroom the accused had "last time". No evidence was adduced about this 'last time' and what if any evidence D/C Bokstein based his conclusion on from last time or even if it was from his own observation during that search or something he was told. Inside this 'front bedroom' as the officer described it, was a mini fridge and a backpack beside it. Seizures in this room, came from:
The backpack – it contained two baggies. One had white powder that tested as cocaine and weighing 3gms. The other had 3 pills, one of which was sent for testing and confirmed to be oxycodone. There was no ID in this backpack. No photo was entered or description of the backpack was provided.
The mini fridge – it contained 2 zip lock bags containing 20.9 grams of white substance resembling cocaine – 4.4 grams of which was sent for testing and confirmed to be cocaine. According to D/C Bokstein, the bag containing this cocaine did not conceal the substance. In other words, it was apparently visible with the fridge open according to the officer. However again, no further description was provided of the packaging – nor was a photo entered.
'A drawer' – it contained a dime bag within a pouch which—according to the officer—had the same marijuana leaf symbol as the dime bags earlier seized search incident to arrest. No photos were entered depicting these baggies. This baggie contained 0.3 grams of suspected cocaine. No evidence was led as to whether it was submitted and tested by an Analyst. No description of this drawer was given or even what it was a drawer of.
'A dresser drawer' – it contained 6 white pills. One was tested and confirmed to be Baclofen (or its salts)
Both officers Bokstein and Chimenti testified to the procedure. After D/C Bokstein saw drugs in the fridge and backpack, he notified D/C Chimenti – as he is the exhibits officer – of his discovery. Officer Chimenti then attended the room to photograph, document and seize. No photos were entered as exhibits. Officer Chimenti testified to locating and seizing the other contraband just described as well as a T4 statement in this same bedroom. Officer Chimenti did not seize the T4 but he testified that he took a picture. He did not note the name appearing on it; but rather explained that he took a picture of it. This picture was not entered in evidence. When asked if he knew what name appeared on the T4, he stated he 'believed' it belonged to the accused. This evidence was not challenged. This T4 is the sum-total of all evidence I have heard about the belongings or state of this bedroom apart from the contraband that was seized. No evidence was adduced about what else, if anything was in this bedroom. I do not know what furniture was in the room, if there was clothing, or any other indicia to indicate whether or not this bedroom was used as such and by whom.
(ii) Evidence was adduced through both officers that a room they ascribed to the accused's brother was searched. No details or evidence was entered supporting this fact one way or another. From this bedroom, police seized the following: a digital scale and brass knuckles. Officer Bokstein also testified there was a small amount of cocaine seized from this room which he believed belong to the accused. From the evidence tendered, I do not know whether there is any furniture, personal belongings, or other details which could show whether or not this bedroom was used as such and by whom.
(iii) D/C Bokstein testified that the "father's room" was also searched but nothing was found. Like with the "brother's room", no evidence—direct or circumstantial—was adduced concerning whose bedroom this belonged to.
(iv) Lastly, what D/C Bokstein described as the 'guest room' on the second floor was searched. Police seized a safe, which was secured with a combination-style lock, from the closet of that room. Police later broke into the safe at the police division. No admissible evidence was adduced to substantiate D/C Bokstein's opinion or conclusory statement that this was the 'guest room'. As with the other evidence documented and seized directly from the home, D/C Chimenti was tasked with itemizing and documenting the contents of the safe. He testified to locating:
Two packages of "numerous" dime bags with a marijuana leaf symbol on them, similar to the other dime bags seized in this case. Officer Chimenti testified that he does not know how many bags nor whether they were new or used. He took pictures though. Officer Bokstein testified that he was present when D/C Chimenti, searched, seized and documented the items in the safe. He noticed the dime baggies and said it looked the same as the pattern on the dime bags seized off the accused
A bong and bong water
A digital scale
Ziplock bag with two plastic wrappers containing 1.6 grams of cocaine
A large Ziplock bag with an unknown white substance weighing in at 71.1 grams. Officer Chimenti testified that he suspected this substance was cocaine but he never received confirmation of this from an Analyst with Health Canada;
"miscellaneous business cards"
31Again, no other evidence – whether viva voce, through documents or photos – was entered about what else, if anything was found in any of the referenced rooms or anywhere else in the home, in terms of personal belongings, family photographs, identifying documents or furnishings.
IV. ANALYSIS
32The Crown argues that it can be inferred that Mr. DeRose had knowledge and control of the cocaine in the house and possessed it and/or the cocaine on his person on arrest for the purpose of trafficking given all the circumstances in totality including:
Cash at the time of his arrest of $560 in his pocket separate from the $280 cash in a Gucci wallet also in his pocket upon arrest;
Two dime baggies in his possession upon arrest. One was in the Gucci wallet and contained 0.3 grams of cocaine. One was in his pocket but outside the wallet and contained 0.4 grams of cocaine;
That Mr. De Rose lived at 765 Boughton Cr.;
That Mr. DeRose was seen to attend this home briefly on the day of his arrest with his father, and then leave alone and travel in his vehicle to three separate residential areas. The first, he entered a garage of a home where others appeared to be and left a few minutes later. The second, he entered a home and re-emerged 30-40 minutes later. At the third, he was arrested in his car while parked in a visitor's lot of a condo-complex before anything happened or before he went anywhere;
That a pattern on the dime baggies on Mr. DeRose's person appeared similar to a pattern found on dime baggies at 765 Boughton Road;
That over 24 grams of cocaine was found in the personal bedroom of Mr. DeRose, hidden away in a backpack and a bar-style mini-fridge. Another dime baggie with a marijuana leaf symbol was in a "drawer" of this bedroom;
That more cocaine, a large bag containing 71.1 grams of a substance looking like cocaine, several dime baggies with a similar marijuana leaf symbol to what Mr. DeRose had on arrest, and a digital weight scale was secreted away in locked safe, inside the closet of a different bedroom in the home—which is a non-publicly accessible area of a home where, during surveillance, police saw very few people enter;
Police surveillance of the accused and the exterior of 765 Boughton over five weeks or so leading up to the day arrest revealing the accused having about nine interactions with other people on various days – although some on the same day. The officer testified that, looked at in totality, he believed Mr. DeRose was engaged in drug trafficking during these interactions.
33I agree with the Crown that these facts in totality can support the inferences required on the essential elements of the offence, but not all of those primary facts have been established. Facts vital to this chain of inference drawing urged by the Crown are missing.
34The officer's opinion that Mr. DeRose was trafficking cannot be relied upon. The officer stated that he based this opinion on the totality of all that he saw in the way Mr. DeRose interacted with various people (or places) during the period he had him under surveillance. He believed the incidents he outlined to the Court formed a pattern consistent with drug trafficking. In the end, however, the Crown agreed that the officer's bald opinion could not be used by the Court as evidence going to any of the essential elements of the offence.
35His opinion is not admissible for that purpose as he was not qualified as an expert. No expert evidence was called at this preliminary hearing addressing that point or on the indicia of the purpose of the possession of the cocaine generally. Looking at those interactions apart from his opinion does not add much. The officers were never in a position to see what the 'interactions' entailed. Nothing was ever seen in Mr. DeRose's hands. There was no pattern. They observed a 20 year old young adult meet up with other people. Some meets were in a car, some in other residences, and one in a garage. These visits with others also varied in time interval. Some seconds, a few minutes, while others were 50 minutes long. On a few occasions he was accompanied by a friend—once a girlfriend. All told, there were about nine of them spread out over a period of surveillance spanning over a month. Nine visits or interactions with other people. Period.
36Taking this conduct evidence of suspected trafficking out of the mix does not effect the Crown's case on committal. What is vital to the Crown's case—with or without the unqualified expert evidence from the police—is evidence supporting the inferences that Mr. DeRose's knew about the cocaine and other contraband stowed away in private areas of 765 Boughton Cres and had control over it.
37No matter how you look at it—as a case of direct evidence of possession of the drugs on arrest with all the other evidence rallied in support of the purpose of the physical possession of two dime baggies of tiny amounts of cocaine or as a case of indirect evidence of possession of the more substantial drugs in the house where indicia of trafficking is apparent, with all the evidence rallied in support of knowledge and control of those drugs—either theory is dependent on it being possible to reasonably conclude Mr. DeRose had knowledge and control of the contraband in the house. While possession of a particular quantity of a controlled substance—including if it is merely fractions of a gram like Mr. DeRose had on him—is not part of the actus reus of the offence of possession for the purpose of trafficking[4], the amount or quantity of a drug is often relied on as circumstantial evidence on the 'for the purpose' component. On these facts, such reliance is essential for the Crown.
Knowledge and Control of the Drugs and Related Items in the Home
38Central to the Crown's position is that Mr. DeRose lived at 765 Boughton Cr, Milton. The defence disputes that such an inference can be drawn and flagged this issue of contention early in the proceedings.
39Two officers testified to knowing Mr. DeRose from a prior investigation and knew him to live at this address, but I cannot take much if anything from that evidence as the circumstances of that knowledge was not put in evidence: was it first hand or was it a fact officers learned as a result of the investigation through hearsay means from a civilian witness or other police officer? No paperwork such as a certified copy of the Information or the Probation Order that listed this as Mr. DeRose's residence was introduced.
40Similarly, when Mr. DeRose was arrested on June 20th, I heard evidence that a POA ticket, a DL, and a LA Fitness Staff card were seized off of him; however, no evidence was adduced either orally or through a picture of that ID, what address Mr. DeRose was connected to.
41Internal police database searches showing the Boughton Cres., home as Mr. DeRose's residence, similarly, is hearsay and cannot be relied upon to support the inference that Mr. DeRose lived at that address.
42However, I am satisfied there is evidence based upon the police surveillance that a trier of fact could find that the accused was living there in the weeks leading up to execution of the search warrant. The real issue is how firmly connected to this home he was as compared to others and if he occupied a specific bedroom as compared to others because it is the cogency of his connection to this home, and in particular to the private spaces of it, that base the ability to leap to the inferences of knowledge and control over items not in common areas or in plain view—but in items secreted away in the backpack, minifridge, drawer and in the safe in another bedroom.
43In my view, the evidence about the house and what was inside it is so devoid of detail to connect Mr. DeRose to the degree required to the home and to the particular private spaces where the drugs were hidden.
44Although occupancy of a place or premise by an accused can, depending on all of the evidence, lead to the inference of knowledge and control of things found within it, it does not create a presumption of possession: Lights, supra at para 50; R. v. Lincoln, 2012 ONCA 542 at para 3. The features usually present which would allow for the inferences of knowledge and control of the items found at 765 Boughton are not present in this case.
45In R. v. Pham, [2005] O.J. No. 5127 (Ont. C.A.), a case routinely cited in support of the availability of this inference, individually wrapped crack cocaine, totalling 9.8 grams was found in the bathroom, a common area, in a cloth purse. Currency was found in a make-up bag. When the police searched this apartment, only a male friend of the accused was present. The accused, Pham, had been observed to exit the apartment a day or so before. At trial, there was evidence that Ms. Pham moved into this apartment as the sole occupant about five months prior. Then two months later, the male who was present when the police executed the search, moved in.
46A neighbour testified that after Ms. Pham moved in, she observed visitors come to her door on a consistent basis. This neighbour noticed that people approached Pham's door, money would slide under it and a clear plastic bag would come out containing white stuff. These exchanges were short and occurred at the doorway. Sometimes this neighbour would hear voices from within the apartment during these exchanges and identified Pham's voice as one of them. The neighbour also testified that she saw Pham open the door on two of these exchanges. The first was when a man asked if $50 was enough and she let him in. The second was a few days before the search warrant when she saw Pham in the exchange of money for a small plastic bag with white stuff in it.
47A day before the search warrant, while Pham was absent from the apartment, police observed someone briefly attend at her unit and leave. He was arrested and had two pieces of crack cocaine in his possession. Only Pham's male friend was present in the apartment at the time. It was conceded at trial that this was Pham's apartment which she shared with her friend. Kozak J., writing for the majority on appeal, found that the trial judge was entitled to convict Pham even assuming her male friend or someone else brought the drugs into the apartment during Pham's absence. At paragraph 25, he cited the following findings of the trial judge and evidence in support of the inference of knowledge and control:
(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 Ms. Pham'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 Ms. Pham, 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) Mr. Nguyen either filled Ms. Pham's shoes as the primary distributor during her absence or she and Mr. Nguyen jointly operated the trafficking scheme.
48In R. v. Chambers, [1985] O.J. No. 143 (Ont.C.A), the prohibited drugs were found in the bedroom the respondent shared with her boyfriend when he visited (as he was at the time). The Crown argued joint possession. Chambers was successful in quashing that comital order upon review. The Crown appealed. It was uncontested that the drugs were found in a room—her bedroom—and that she knew of the drugs. Some of the evidence of knowledge included:
A plastic bag containing one hundred and four grams of cocaine of ninety-five per cent purity on the top shelf of an open closet, at the north end of the bedroom
The closet contained mostly women's clothing and the plastic bag containing the cocaine was underneath some women's sweaters
A number of photographs of the respondent, showing her modelling women's clothing, were also found underneath the sweaters
The dresser contained women's clothing and on the top of the dresser were lipstick, nail polish and other things of that kind
There was on top of the dresser a drug debt list or a drug price list and an empty "deck", that is, a folded paper used for carrying drugs, such as cocaine
Men's clothing was scattered at the foot of the bed, and a rack hanger at the south end of the bedroom held men's clothing
The respondent's purse containing identification papers was found at the foot of the bed
During surveillance immediately before the warrant's execution, police were able to observe Chambers inside this bedroom
The target of the search—Chambers' boyfriend—returned to the apartment while the search was in progress
49At issue, was whether or not 'control' was a possible inference from her knowledge of drugs within her own room.
50On appeal, Chambers argued that her control over the room where the cocaine was found cannot be equated with a measure of control over the drug itself. In granting the Crown appeal, the Court ruled that Chambers' right to grant or withhold consent to the drug being stored in her room, gave her the necessary measure of control over the drug.
51On the record at this preliminary hearing, the evidence is bare in even showing the accused was living at 765 Boughton, never mind in control of the private areas of the home which secreted drugs—particularly given two other men were equally seen to be living there according to police observation and were present at the time of the warrant's execution. Other unidentified people were also seen coming and going.
52A sense of how many people living in the home cannot be derived from the evidence. If he was a resident of 765 Boughton, Mr. DeRose certainly was not in excusive possession of this home, nor of any particular room in the home.
53No evidence was introduced describing clothing the accused wore while being surveilled. No evidence was introduced about the type of clothing inside the house, if any, observed by the police during the search warrant which may have shed light on the number of people who appeared to occupy the home. No evidence was called as to whether any items seized were fingerprinted or otherwise scientifically tested to help show who may have touched the items.
54No evidence was called about what keys—if any—were in Mr. DeRose's custody upon arrest. The evidence did not address whether or not he had a key to 765 Boughton.
55For the most part, evidence of the police surveillance in the weeks preceding the arrest did not assist in revealing the scope of people who may have occupied this home. In the six weeks between May 8th, 2019 and June 20, 2019, the officers referenced ten days (May 15, May 20, May 23, May 24, May 25, May 28, May 29, May 31, June 19, and June 20) where they observed Mr. DeRose coming or going from this home. Rarely was the time of day referenced. During those ten specific days referenced, the police also saw the accused's father, brother, two other unknown males and a female enter 765 Boughton. These were all snapshot-like moments in time at specific points in those days. No evidence was provided as to whether or not anyone—including the accused—had to knock on the door or wait to gain entry or just walked in or appeared to use a key. No narrative was provided as to whether or not any of these individuals—including the accused—stayed the night and/or never re-emerged from the home after a certain point—this is despite the fact that a camera was covertly placed out front of the home to aide in the live surveillance running for a number of days beginning on May 20.
56The nucleus of the Crown's case is evidence about a T4 Statement and an apparent similarity of dime baggies found in the house compared to the ones in Mr. DeRose's pocket on arrest.
57The only evidence concerning the T4 came from the testimony of the exhibits' officer, D/C Chimenti. He said he located, in a room believed to be the accused's, a T4 Statement. He took a photo of it, but did not seize it.
58The Crown later confirmed with the officer that the T4 was found in the same room that contained the backpack and mini-fridge and asked D/C Chimenti if he recorded the name from the T4 statement, to which the officer replied: "I took a photo of it. I didn't record it in my notebook, but I believed, from my recollection, it belonged to the accused." The equivocal nature of this answer together with the absence of detail such as, the actual name on the T4 Statement, address, SIN, employer, the year of it, or where exactly it was found leaves this evidence nearly devoid of value.
59This was the only evidence called suggestive of any personal item, ID or personal property belonging to the accused found inside the home or in any particular room where contraband was found. And where in this room was the T4 found? Was it on the floor? In a drawer? Was it found amongst other paperwork with possibly the accused's name or with paperwork in someone else's ID? Was this the employer or employee copy of a T4? Did this statement form part of a file or set of files? Were they files of an accountant? Was the statement found inside a desk? Was there a desk in the room? Was there a bed? My intent here is not to examine frailties in the evidence or assess its weight. I am aware the evidence looked at in totality has to be taken at its highest for the Crown. Inferences in favour of the defence should not be preferred or really even considered. Inferences sought by the Crown, even if not the most compelling out of a range of possible inferences will ground a committal to trial, but they must be reasonable ones grounded in primary facts. How could evidence of such an equivocal nature without surrounding detail or context be a cornerstone of committal? An educated guess cannot supplant evidence: USA v. Huynh, [2005] O.J. No. 4074 (Ont. C.A.).
60This T4 statement and the evidence suggesting a link between the dime baggies in the accused's custody at the time of the arrest with dime baggies in this residence is the foundation of the case against Mr. DeRose on this record; but like the T4 evidence, the dime baggie evidence is so devoid of detail to be capable of founding the primary facts needed to infer the essential elements of the of the offences. Both officers testified that all the dime baggies had a similar pattern and believed them to be the same. One officer described it as a baggie with marijuana leaves with a repeating pattern. The other described it has having a marijuana leaf symbol. It does not matter that they describe it differently. This is a preliminary hearing. I can take the best effect of their evidence in the Crown's favour except that no further detail was adduced whether by way of entering the dime baggies themselves (or a photograph of them) or through a detailed description by one of the officers in order to allow me to even get a good enough sense of what it looked like and the significance of the baggies having an apparently same pattern.
61Essentially, in my view, the deficiencies in the evidence in this case boils down to the pervasive absence of detail—that when taken together—leave the primary facts incapable of supporting the inferences urged by the Crown. At several points in their evidence both officers testified to an item of evidence being photographed as if in lieu of giving a full answer or answer at all. An example of this is when D/C Bokstein was asked about the cocaine he found inside the mini-fridge and where within the fridge it was[5] or if it was concealed or not, he stated: "I located a bag containing a small chunk of cocaine … I observed the bag just by looking inside the fridge. I don't recall exactly where inside the fridge it was located. It was a small mini bar fridge. From my recollection I believe it was on the top shelf but I believe there are photographs of it which will show exactly where it was seized." This particular point in and of itself is not critical, but I do not know if this cocaine is in rock or powdered form. I do not know what it or the packaging looked like – other than it was 'not concealed' within this fridge. This same deficit holds true for some of the other seizures of cocaine or suspected cocaine. A couple of times there was a reference to it being in powered form. Mostly the evidence was silent on its appearance.
62Usually that would not matter in a preliminary hearing, except sometimes those very details are significant ones. To be clear, I throw no aspersions on the officers or the Crown. The officers testified in an honest and sincere fashion. I got the impression in the way they answered questions that the officers expected these photographs would be introduced. There is likely a good reason why the Crown did not introduce any. No explanation was offered. None is required. But where, as here, the effect is a void in detail necessary to prove the primary facts that desired inferences are based on, it is fatal to the Crown's case for committal.
63The evidence is not capable of supporting an inference of possession of the drugs and related items seized in the home. A properly instructed jury, therefore, could not convict. This applies to both counts: simple possession of the oxycodone and the possession of cocaine for the purpose of trafficking.
64The evidence is but a few photographs away or a few sentences of description short to be capable of founding committal, but it is not my role to assume or fill in the inferential gaps with educated guesses, no matter how close to the line this case is.
V. CONCLUSION
65Mr. DeRose is discharged on both counts remaining on the Information.
Released: August 17, 2020
Signed: Justice A. Calsavara
Footnotes
1The defence argued that the Court can take from this withdrawal that the Crown has conceded the requisite indicia of trafficking required for the s. 5(2) is lacking. I draw no inference from the Crown's exercise of its discretion. In any event, the elements of these two offences are different.
2Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136
3R. v. Villaroman, 2016 SCC 33 , [2016] S.C.J. No. 33
4See R. v. Chan, [2003] O.J. No. 3233 (Ont. C.A.) leave to appeal dismissed [2003] S.C.C.A. No. 453 where the Court rejected the appellant's argument that one cannot be found guilty of possessing heroin for the purpose of trafficking even where there was evidence of a scheme to import and distribute the drug where, in a controlled delivery case, the police removed 6 kgs of heroin and left only 1 gram in the package. The Court summed up with the following at para 33"… the fact that quantity can be, and often is, an indicium of purpose, does not make it a part of the actus reus of the offence."
5Where in the fridge the drugs were found is not in issue and in fact the other officer did recall its location. This reference to the evidence is offered by way of illustration.