ONTARIO COURT OF JUSTICE DATE: November 5, 2024 COURT FILE No.: Toronto 4810-998-22-70001577 4810-998-22-70001578
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAYLO ROBINSON
DALTON WILSON
Before Justice Hafeez S. Amarshi Written reasons released on November 5, 2024
Counsel: M. Gharabaway....................................................................................... counsel for the Crown A. Enenajor and S. Shillingford……..…………………………...counsel for Daylo Robinson S. Proudlove……………….………………………………………..counsel for Dalton Wilson
A. Introduction
1On February 10, 2002, police executed a search warrant at 185 Queen St, Unit 2, Port Perry. Four people were located inside the unit. 1 In a satchel on a bed police located a loaded firearm. Also located on the bed was 35.6 grams of crystal methamphetamine, 51.07 grams of powder cocaine and 2.19 grams of fentanyl.
2Earlier that day a telewarrant had been granted to search the Queen St. apartment and a Volkswagen Jetta. No evidence was recovered from the vehicle. A Feeney warrant was also authorized at the same time for the arrest of Daylo Robinson and Dalton Wilson.
3By way of background, the police were initially investigating obstruct justice and human trafficking allegations involving these defendants. The investigation was commenced by the Human Trafficking Enforcement Team (HTET), a unit of the Toronto Police Service.
4At the time of the alleged offences, Mr. Wilson was bound by a probation order that he keep the peace and be of good behaviour. Mr. Robinson was bound by a recognizance from Nova Scotia that included a house arrest condition. The release was related to firearm charges from Dartmouth. Prior to the search of the Queen St. apartment, a warrant of arrest was issued by a Justice of the Peace in Nova Scotia.
5As a result of the investigation both accused were jointly charged with multiple firearms and drug related offences. 2 These include the following:
(i) Possession of cocaine, crystal methamphetamine and fentanyl for the purposes of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substance Act.
(ii) Possession of a firearm, specifically a Colt .38 revolver, without possessing a licence or registration, contrary to s. 91 (1) of the Criminal Code; as well as possessing a loaded prohibited firearm, together with readily accessible ammunition that is capable of being discharged from the firearm, without possessing a licence or registration, contrary to s. 95 (1) of the Criminal Code.
(iii) Both accused are also charged, pursuant to s. 86 (1), with the careless storage of a firearm and the possession of a firearm for a purpose dangerous to the public peace, contrary to s. 88 (1) of the Criminal Code.
(iv) Daylo Robinson and Dalton Wilson were subject to a firearms prohibition order at the time of the alleged offences and are charged contrary to s. 117.01 of the Criminal Code of possession of a prohibited firearm while prohibited pursuant to s. 109 (3) of the Criminal Code. They are further charged with the possession of ammunition while prohibited, contrary s. 109 (3).
(v) Daylo Robinson is charged with a breach of his recognizance. Specifically, a house arrest condition of his bail from Nova Scotia contrary to s. 145 (5)(a).
(vi) Dalton Wilson is charged with a breach of a probation order, specifically that he keep the peace and be of good behaviour contrary to s. 733.1 of the Criminal Code.
6In an earlier decision, R. v. Robinson, 2024 ONCJ 477, I found Daylo Robinson lacked standing to challenge the issuance of the search warrant in this case. It was conceded the co-accused Dalton Wilson, the tenant and consistent occupant of the unit, had standing. In R. v. Robinson, 2024 ONCJ 520, I concluded the search warrant was lawfully obtained and I dismissed an application by Dalton Wilson to exclude evidence seized from the Port Perry unit.
7The main issue in this case is whether the Crown has proven possession of the revolver and illicit substances beyond a reasonable doubt. It is well established that the law of possession requires proof of knowledge of the contraband found in the apartment and a measure of control over those items.
8The Crown relies on circumstantial evidence to prove its case. Therefore, the Crown must demonstrate that Mr. Robinson and Mr. Wilson’s possession of the firearm and illegal drugs are the only reasonable inference available on the totality of the evidence.
9The Crown proceeded by indictment. Pursuant to an agreed statement of fact that was filed in this case, the Crown was not required to prove the nature of the substances seized nor that the handgun that was found by police meets the definition of a prohibited weapon. The firearm was operational. It is conceded that Dalton Wilson, was subject to a weapons prohibition order pursuant to s.109 of the Criminal Code and at the time of the alleged offences he was subject to a probation order. It is further conceded that Daylo Robinson was subject to a recognizance that required him to stay in his residence in Dartmouth Nova Scotia at all times, except in the continuous company of a surety, and further, he was subject to a weapons prohibition order.
B. Relevant Evidence
Search warrant execution
10The Durham Regional Tactical Support Unit (TSU) assisted in the execution of the search warrant at the request of the Toronto Police Service (TPS).
11The team which consisted of eight members arrived in Port Perry at 9:30 p.m. for a briefing. The building at 185 Queen Street is small, comprising of commercial businesses on the ground floor and residential units above. Unit 2 was on the east side of the building.
12According to Officer Matthew Paro, TSU team lead, his unit was tasked with gaining access to the apartment, securing any occupants, and creating a safe environment for the Toronto human trafficking team to conduct a search. The tactical officers were not looking for any specific items or evidence, although they were concerned about the possible destruction of evidence.
13At 10:17 p.m., TSU members breached the door of the residence using a ram. It was a dynamic nighttime entry as authorized in the search warrant.
14Officer Paro encountered Daylo Robinson and Dalton Wilson in the bathroom. He observed Evelyn Negus and Mercedeze Watson at the back of the apartment near the window. All parties were detained.
15When asked about the movement of furniture, the officer stated that although he did not see his fellow officers move any furniture when they were in the apartment, it is standard practice for tactical officers to lift beds and move couches to ensure there are no occupants that are hiding.
16At 10:26 p.m., the unit was deemed secure and turned over to Toronto officers. A pre-search video was conducted. Once completed, the Human Trafficking Enforcement Team members commenced searching the unit.
17Officer Paro testified when shown a pre-search video of the unit, that he couldn’t say whether the items depicted in the video, were in the same position when TSU officers first breached the door.
18Multiple officers described the bachelor apartment as small between 400 and 500 square feet. Upon entering the apartment there is a small kitchenette to the immediate right and bathroom to the left. The living room and bedroom are combined.
19According to Detective Constable Scott Taylor, a member of the human trafficking team, when he first entered the apartment he observed a wooden framed futon-style bed in a vertical position up against the wall of the unit, adjacent to a window. 3 Along with Inspector Earle Davies, he pulled the bed down and placed it in a horizontal position.
20At the top end of the mattress were several items, “bunched up” at the head of the bed. DC Taylor concluded the contents on the bed had slid into that position when the bed was pushed up.
21Inspector Davies concluded the TSU had placed it against the wall to ensure no-one was hiding under the bed. This was consistent with his previous experiences working with tactical officers.
22There were multiple items near the headboard, including a red and black satchel, which he also described as a fanny pack. The satchel was branded with a “True Religion” logo. The zipper was closed.
23In the same area as the satchel at the top of the bed was a TV converter, a Louis Vuitton branded strap, a circular tin container 4 and what looked to be a make-up applicator. On top of the container a cellphone. According to Evelyn Negus, that cellphone likely belonged to her because of the screensaver image, which she recognized as a photo that was taken during Christmas with Mr. Robinson and his niece. 5 A second cellphone is also among the “bunched up” items. Ms. Negus believes the phone belongs to Mr. Robinson because the screensaver contains her image. The screen is partially cracked.
24On the same bed, DC Lucas Aleksandrowicz, a member of HTET, located two ziplock baggies, specifically the baggies are seized at the northeast corner of the bed, close to the headboard. The larger of the two ziplock bags contains three smaller bags. They contain three different substances – crystal methamphetamine, cocaine, and fentanyl. The drugs are separated from each other. The fentanyl is contained in a small clear green bag.
25Immediately to the left of the bed is a small bedside table. On the top of the table is a camouflage-coloured gaming controller, an insulin travelling case, a cardboard box containing a small digital scale and some loose change. Also located on the table is a wallet. The wallet belongs to Daylo Robinson. It contains Mr. Robinson’s identification, specifically a government issued identification card from the province of Nova Scotia. It includes the defendant’s photo.
26Opposite the bed is a TV that sits on top of a dresser. In between the dresser and the bed on the floor, DC Taylor locates a book entitled “Daily Diary 2021.” The officer was uncertain whether the diary was on the ground prior to the entry by the TSU team or thrown on the ground. The diary contains, what the Crown submits is a drug price list.
27In a closet adjacent to the couch in the apartment is a pellet gun. 6
28Inspector Earl Davies searches the far-right corner area of the apartment. In that corner between the window and TV stand the officer locates a “Fit4Less” Goodlife gym bag. Inside the bag was a black bullet proof vest. The panels were empty, which according to Inspector Davies, meant the vest had no ballistic value. Also located in the gym bag was a set of handcuffs and a vinyl pouch accessory designed to hold ammunition magazines. The pouch was empty. On top of the bag was a pregnancy test.
29In that same area are bags containing men’s and women’s clothing and two printed photos of Daylo Robinson. Ms. Negus testified that this was the area of the unit that she and Mr. Robinson had stored their belongings.
30Detective Constable Nicholas Randall, a TPS officer, who assisted in the search of the apartment located on a black coffee table a health card and a bank card for a Ryan Otter, as well as a health card in the name of Daniel Cehajic. On the same table was a black cell phone and a baseball hat.
Evidence of “found-ins”
(i) Mercedeze Watson
31Ms. Watson is 22 years old. On the evening of February 10, 2022, she was picked up in a vehicle in Oshawa by Dalton Wilson and Evelyn Negus. She was a high school friend of Mr. Wilson, although she had not seen him in some time. She did not know Ms. Negus. They drove to Port Perry arriving at the apartment some 20 to 30 minutes later.
32She met Daylo Robinson in the apartment. He was sitting on the bed. Mr. Robinson offered her a shot of alcohol which she consumed. She then started smoking marijuana in a bong that she brought with her and playing with her tattoo kit. At one point Ms. Negus and Mr. Wilson left the apartment to go to the LCBO. During that time, she was alone with Mr. Robinson, who was sitting on the bed and was playing with a gaming controller.
33About ten minutes after leaving the pair returned. Ms. Watson had another shot. She remembers that Dalton Wilson and Daylo Robinson were in the kitchen area. That Evelyn Negus was sitting on the bed.
34She testified that she was in the apartment for about 20 to 30 mins before the TSU entered. She first heard a bang. She said she was in shock and was thrown to the ground by one of the officers. She was subsequently taken to a police vehicle.
35She was shown a series of photographs by the Crown. She denied the red and black satchel belonged to her. She further testified that she did not see the satchel in the apartment. She further stated that she did not see the ziplock baggy of drugs.
36Ms. Watson recalls seeing the digital scale, wallet, and insulin case on the side table. She had a conversation with Mr. Robinson, who told her not to move the case. The bed was in a horizontal position and against the wall during the time she was in the apartment.
37Since the arrest she has not spoken to the other occupants found in the unit.
(ii) Evelyn Negus
38Ms. Negus is 21 years old. She has no criminal record. She had been staying at the Port Perry apartment for about a week prior to the search warrant execution on February 10. She arrived in Port Perry with Daylo Robinson. They had been in a relationship for a few months.
39Ms. Negus testified the couple left Nova Scotia by car. They travelled in a 2016 Volkswagen Jetta, registered in the name of Ms. Negus’ father. They stopped along the way in New Brunswick, Quebec, Ottawa, and Mississauga. On occasion they would stay in a hotel. She did not travel with much money.
40Ms. Negus believed they had been on the road for a week and a half before coming to Port Perry. That they packed and unpacked multiple times and that she never saw the True Religion branded red and black satchel.
41When they arrived in Port Perry, Ms. Negus was feeling under the weather. She thought she had a cold or flu. She did some sightseeing.
42In the apartment she slept on the bed with Mr. Robinson. Dalton Wilson slept on the sofa. She described the apartment as messy, that everything was just thrown around. She recalled one night Mr. Wilson was away from the apartment and went to stay with his girlfriend.
43She described February 10, 2022, as a “pretty typical day.” She went to buy groceries and remembers picking up a pregnancy test. Later that evening she went to pick up another pregnancy test. Shortly after she returned, she says, police arrived.
44She believed Mercedeze Watson arrived at the apartment two or three hours before police arrived. She does not remember how she got to the apartment.
45Ms. Negus denied the contraband found in the residence belonged to her. She was shown a photograph of the satchel by the Crown. She says had never seen it, either in the apartment or prior to that during her time travelling with Mr. Robinson.
46She identified the “Fit4Less” bag as possibly belonging to Mr. Robinson.
47She does not recall seeing a scale in the unit. She confirmed the bed was in a horizontal position prior to the police entry that night.
C. Position of the parties
48The prosecution’s case relies entirely on circumstantial evidence, from which knowledge and control can be inferred. The Crown’s position is that the only reasonable inference available on all the evidence is that Mr. Robinson and Mr. Wilson had constructive possession of the illicit substances and firearm or jointly possessed the contraband. 7
49The Crown’s operating theory is that both accused were working in concert as drug traffickers. That firearms are typically present in drug trafficking enterprises as a source of protection and intimidation.
50Ms. Gharabaway argues when the evidence is viewed in its entirety it supports the Crown's argument that constructive or collective possession of the contraband found in the apartment has been proven beyond a reasonable doubt.
51She points to the following evidence - that the drugs were found in plain view in in Dalton Wilson’s apartment. The unit is small, and no effort was made to conceal the drugs. That Daylo Robinson had “habitual use” of the bed where the drugs and firearm were located. That there was ample evidence of drug trafficking, including a digital scale and diary containing a drug price list.
52Given its contents, the Crown submits the diary clearly belonged to Mr. Wilson, and it is further evidence that the defendant had knowledge and control of the illicit drugs.
53The Crown points to gun related paraphernalia located by police in a Goodlife bag she says belongs to Mr. Robinson as a compelling piece of evidence tying him to the Colt .38 revolver.
54Annamaria Enenajor, counsel for Mr. Robinson, argues the Crown has not established beyond a reasonable doubt that Mr. Robinson had knowledge of the contents of the red and black satchel nor control over the drugs found on the bed. She further submits that a reasonably plausible alternative inference is that the items seized by police belonged to the co-accused, who was the primary tenant of the unit. That Mr. Robinson was a friend visiting from out of town and he did not possess these items, specifically that he lacked exclusive control over the contraband.
55Ms. Enenajor further points to the evidence of Evelyn Negus who testified that she never observed Mr. Robinson in possession of drugs or a firearm. This despite the fact that the couple had been on an extensive road trip prior to arriving in Port Perry. She deemed Ms. Negus to be a credible witness that bore no ongoing allegiance to the accused, such that she would “obfuscate” the truth.
56In addition, counsel characterized the execution of the search warrant by the tactical unit as problematic. That the dynamic entry by police tainted the scene such that this Court cannot be certain of the location of the contraband that was seized. This disruption of the evidence undermines, she says, the Crown’s argument that Mr. Robinson was found in proximity to the drugs and guns which supports a compelling inference he had constructive possession of these items.
57Mr. Proudlove argues there is insufficient evidence to conclude there was a joint enterprise between the two accused. Specifically, there is no cellphone-based evidence, nor surveillance that demonstrates there was drug related activity taking place out of the unit.
58Given the Crown's case relies exclusively on circumstantial evidence, there is a reasonable alternate inference that Mr. Robinson was in possession of the firearm and illicit drugs found by police. That the contraband was found in proximity to where Mr. Robinson was seated prior to the police execution and that he exercised exclusive control over the contraband. That both Mr. Robinson and Ms. Negus had a meaningful connection to the unit and occupied the bed for the duration of their stay in Port Perry. Further, Mr. Robinson’s wallet and insulin package were found in the area closest to the bed.
59In addition, Mr. Proudlove submits the diary is not a compelling piece of evidence linking Mr. Wilson to the illicit drugs, as suggested by the Crown. There is nothing, he says, in the contents of the diary that directly ties its ownership to the defendant. He notes the diary contains numbers with 416 area codes, which suggests contacts outside of Durham’s 905 region.
D. Applicable legal principles
60The criminal code recognizes three forms of possession: personal, constructive, and joint possession. As the Court of Appeal stated in R. v. Degraw, 2018 ONCA 51, at para. 8, “Regardless of the route, there must be knowledge and some level of control.”
61Determining personal possession is straightforward. The accused must be aware that he or she has physical custody of the thing in question and, the accused must be aware of what that thing is. Both elements must co-exist with an act of control. 8
62Constructive possession is established where the accused did not have physical custody of the object in question but did have it, as the Supreme Court explained, in R. v. Morelli, 2010 SCC 8, at para. 17, “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.”
63In order to constitute joint possession pursuant to s. 4(3)(b) of the Criminal Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. 9
64The elements required to establish possession could be proven by direct evidence or inferred from circumstantial evidence or by a combination of direct and circumstantial evidence. 10
65Where the Crown's case is based on circumstantial evidence, as it is here, a conviction only arises when guilt is the only reasonable inference in the circumstances.
66The Supreme Court in R. v. Villaroman, 2016 SCC 33, discussed the burden of proof in cases that rely largely on circumstantial evidence. The court stated at para 38, where the Crown’s case is dependent on circumstantial evidence, “The basic question is whether circumstantial evidence viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty.” If there are reasonable inferences other than guilt, the Crown’s case does not meet the standard of proof beyond a reasonable doubt. 11
67The court went on to explain that reasonable alternative inferences to guilt need not be based on proven facts. They need only be plausible based on logic and experience as applied to the evidence. Justice Cromwell stated at paragraph 37:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies] and “other reasonable possibilities” which are inconsistent with guilt…the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”…“Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation [internal citations omitted]. 12
68In assessing whether the Crown has met its burden, the trier of fact must consider the entirety of the evidence as a whole and not assess the evidence in a piecemeal fashion. 13
E. Credibility assessments
69I found Evelyn Negus to be a credible witness. I concluded that she was an honest witness.
70She readily admitted to facts that portrayed her in a negative light. For example, she admitted to leaving her sick father who was recently diagnosed with cancer to go on a road trip with her boyfriend. She further admitted to taking his car to leave the province without his permission.
71She was subject to a thorough and skilled cross-examination by counsel for Mr. Wilson. When Mr. Proudlove suggested the contents of her statutory declaration were untrue, specifically where she declared she had not observed any contraband during her time travelling with Daylo Robinson, she responded:
Well, that’s committing perjury. I’m very aware of how the Canadian law works and if I were to sign anything like that and read it under oath and it would not be the truth like that’s a problem because I’m like, like I understand the laws around that. I wouldn’t have signed it if it wasn’t the truth Sir, and I wouldn’t be sitting here testifying to it if it wasn’t like no, I’m not going to sit here and say anything but what’s in that because that’s the truth and I made, I made that statement and I signed that under oath because that is, like why would I lie? Why would I ever do that?
72Further, when it was suggested that she tailored her evidence in order to receive a favourable disposition in this case she replied, “I would not want to be separated from my child. But more than that I’d also always want to teach him that telling the truth is what matters and I told the truth in my affidavit, and I told the truth here today.”
73I found those responses to be genuine. An honest reflection of her duty to tell the truth.
74I also concluded Ms. Negus had a good recollection of her time in the Port Perry apartment and her time travelling with Mr. Robinson prior to the couple’s arrival in Southern Ontario. There were aspects of her evidence that were detailed. For example, identifying the area where she and Mr. Robinson kept her belongings – an area between the dresser and bookshelf, tucked against the wall. She identified a “Deadpool” shirt from one of the SOCO photos as a shirt Dalton Wilson gave to Mr. Robinson. She further described with some detail a bag belonging to her ex-boyfriend, explaining that it was rectangular shaped, and then referring to it as similar in shape to the window behind her. 14
75Ms. Negus is young. She was 19 at the time of the offences. I found her to be naïve and highly trusting. I found it odd, that she was unaware her boyfriend had outstanding criminal charges in Nova Scotia and was subject to a restrictive bail. However, after considering the totality of her evidence, I accepted that was likely the case.
76I did not conclude that she was attempting to shade or tailor her evidence to assist her former boyfriend Daylo Robinson. Ms. Negus is no longer in a relationship with the defendant. It is unlikely they have had significant interaction. She has newborn and is living in Nova Scotia. 15 The defendant is in custody in Ontario. She frankly explained, “It’s been like years since we’ve seen each other, or you know been able to communicate. That kind of makes it hard to have a relationship with anybody.”
77Similarly, I found Mercedeze Watson to be a credible witness. I concluded her testimony was truthful.
78Her connection to Mr. Robinson and Evelyn Negus was tenuous. She had met them for the first time on February 10, 2022 - the night the search warrant was executed. She was not in the unit for long before police entered.
79When Evelyn Negus and Dalton Wilson left the unit to go the LCBO, she had only a brief conversation with Mr. Robinson who mostly kept to himself.
80Further, although she was friends with Mr. Wilson, their connection was limited. She testified that she hadn’t seen the defendant in two years, before agreeing to meet him that night. She said they didn’t hang out often.
81I likened Ms. Watson to an independent witness. I detected no bias. Her evidence a neutral and accurate reflection of what she observed and perceived that evening in Port Perry.
82She was resistant to guessing and filling in gaps in her evidence. At one point in her testimony, she said she was guessing on a point of evidence and then declaring that she shouldn’t. She was careful to indicate those areas of her evidence where she was uncertain.
83I concluded she was an honest witness.
F. Alternative theories of liability
84The defence argues the presence of identification in the names of other people supports a real possibility that individuals other than the defendants had constructive possession of the firearms and drugs seized in the unit.
85Further, Ms. Enenajor points to the evidence of Evelyn Negus, who testified that during the weeklong period she was living in the apartment she saw other people in the unit other than the defendants. Specifically, Ms. Negus testified she saw people coming in and out of the unit. That they were friends or acquaintances of Dalton Wilson. Specifically, they seemed comfortable in his space and in his presence. That they treated the space like a crash pad.
86There is no evidence to suggest the contraband in the unit was for the “use or benefit” for anyone other than the defendants. The suggestion is too speculative to be plausible based on this evidentiary record.
87It is not reasonable to infer that a loaded .38 revolver was concealed in a satchel and entrusted to a person(s) who did not know about its contents. The satchel, I note, wasn't further hidden in the apartment but found on the bed. An area I concluded was for common use.
88According to Detective Quinn, the qualified drug expert that testified at trial, the cocaine and crystal methamphetamine, based even on their lowest estimated value was worth approximately $3,800. It is implausible that the illicit drugs, a valuable contraband, found in plain view were entrusted to either or both defendants without their consent, control and knowledge.
89Further, I agreed with the Crown, that it would be an “inferential jump,” lacking an evidentiary basis to plausibly conclude Ryan Otter and Daniel Cehajic, individuals whose identification is located in the apartment, to be meaningfully connected to the contraband. There is a myriad of potential explanations to account for the presence of the ID. Neither individual is tied to the unit by any other evidence.
90This Court is to consider “other reasonable possibilities” which are inconsistent with guilt. However, I have concluded the explanations advanced by the defence are speculative, either alone or in combination and are not more than slight competing inferences. 16 The defence alternative theories are not reasonably plausible given my assessment of the entirety of the evidence.
G. Analysis
91As indicated the main issue in this case is whether Mr. Robinson and Mr. Wilson each had knowledge and control of the firearm and illicit drugs seized by police.
(i) Actions of the Durham Tactical Support Unit (TSU)
92Before addressing criminal liability in this case, I will address the manner in which the search warrant was executed. Ms. Enenajor seeks a finding that the actions of the tactical officers during the initial entry tainted the scene, such that this Court is deprived of the ability to determine the exact location of the contraband that was ultimately seized by police. Such a finding would undermine any meaningful inferences that could be drawn from the proximity of the items to Mr. Robinson.
93The TSU team breached the door of the unit at 10:17 a.m. The scene was turned over to the TPS’ Human Trafficking Enforcement Team nine minutes later at 10:26 p.m. Officer Matthew Paro, a member of the TSU, testified that only closets and large pieces of furniture where people could hide were touched or manipulated. This evidence is contradicted by Mercedeze Watson, whose evidence I accepted. She testified that the tactical officers lifted her backpack off the leather couch to look into the cushions. Further, they lifted the mattress. It suggests the TSU’s actions included a more substantial search than solely securing the unit and controlling the people found in the apartment.
94The Crown cautioned against making a finding that evidence in this case was manipulated by the TSU. She noted that there were items that were clearly not disturbed by the enforcement team, for example Mr. Robinson’s wallet and insulin case were located on the bedside table. Ms. Watson had noticed those items on the table prior to police entering the unit.
95I found the TSU entry into the apartment was sloppy and chaotic. That the nature of the search was more evasive than Officer Paro was prepared to admit. I did not conclude, however, that TSU officers acted in bad faith and willfully distorted the scene. I appreciate the context of the search - it was a small apartment, with five to seven ETF officers executing the warrant in addition to the four occupants already inside the unit. The unit was unkept and cluttered and the officers had reasonable safety concerns based on information provided to them from the Toronto police.
96Despite what I concluded was a degree of carelessness during the initial search by TSU officers, I did not conclude the items located on top of the bed, were placed or thrown there by the tactical officers. It is a matter of common sense, that the items observed in Exhibits 6 A and C and found “bunched up” in the area of the headboard, fell into that place when a tactical officer pulled the bed off the floor and placed it in a vertical position. In the context of a dynamic entry, it made sense that officers would lift the bed off the ground to determine if anyone was hiding. It is a common feature of police tactical entries.
97Where the items were positioned exactly on the bed prior to police entry remains unclear, however, I accept the contraband and multiple cellphones were on the bed in the period just prior to police entry and not placed there inadvertently or deliberately by tactical officers.
Possession of the firearm
Daylo Robinson
98Mr. Robinson was residing in the Port Perry apartment for about one week prior to police executing the search warrant. He had travelled from Nova Scotia with his girlfriend Evelyn Negus, who was also staying in the unit. They were occupying the bed, while the co-accused Dalton Wilson, was sleeping on the couch.
99Although Mr. Robinson was observed on the bed by Ms. Watson in the period before the search warrant was executed, he was not on the bed when the door was breached. According to Ms. Watson he was in the kitchen with Dalton Wilson. 17 In other words, the contraband was not immediately proximate to where he was located. That said, being found proximate to a firearm or contraband does not equate to knowledge and control, although proximity it is a relevant consideration in assessing the adequacy of the evidence as a whole to establish guilt.
100In R. v. Turner, 2012 ONCA 570, at para. 21 for example, the accused was found standing inside a bedroom more than six inches from the room’s doorway. Armstrong J.A. concluded:
In my view, the mere presence of the appellant standing close to the doorway of the bedroom does not establish much. It certainly does not by itself raise the inference that the appellant had the requisite knowledge and control of the gun, which was carefully hidden among folded clothing on a shelf in the bedroom closet.
101Similarly in R. v. Osawe, 2014 ONSC 7220, at para. 76, Forestell J. stated that “mere proximity to the hidden gun could not be enough to support an inference of knowledge or control.”
102In this case, the firearm is concealed although not well hidden, it is secreted in a small “True Religion” red and black satchel. The zipper was closed.
103I accepted Evelyn Negus’ evidence that she did not see Mr. Robinson with the red and black satchel during their time travelling together. She testified that the couple packed and unpacked on multiple occasions.
104Ms. Gharabaway argued that the contents of the gym bag, which she says belonged to Mr. Robinson, and included gun related paraphernalia, ties the defendant to the firearm. Specifically, a bullet proof vest, although it was missing its Kevlar structure, a vinyl ammunition pouch and handcuffs were found in the bag.
105Although these items are suspicious, they did not rise to support a compelling inference of possession. Ms. Negus testified the bag may belong to Mr. Robinson. Even if I were to accept the bag belonged to the defendant, the vest was missing its ballistic supports, rendering it useless, and the magazine pouch was empty undermining the strength of the inference.
106It is clear from the search warrant video and the testimony from multiple witnesses that the bachelor unit was small. The couch for example, where Ms. Watson was seated that night, and where Mr. Wilson slept, is one foot away from the bed. The apartment would have been a tight fit for three occupants, especially over a weeks’ period. In this context, it is difficult to conclusively determine that Mr. Robinson had exclusive control over the bed. I may have drawn a different conclusion had Mr. Robinson and Ms. Negus had their own bedroom.
107I accept, as Ms. Negus testified, that her belongings along with her boyfriends were stored between the dresser and bookshelf, however, given the size of the unit, it is reasonably plausible all areas in the apartment were for common use. Indeed, Ms. Negus testified there was only one couch in the apartment and, “everybody who was sitting on the couch could have been considered hanging around the bed,” and that Mr. Wilson would also sit on the bed.
108Although Mr. Robinson may have had a measure of control over the satchel, containing the firearm, given its location on the bed, I am not satisfied he had the requisite knowledge to support a conviction.
Dalton Wilson
109Similarly, I am not convinced that Mr. Wilson had knowledge of the contents of the satchel.
110As the Court of Appeal explained in R. v. Grey, “Knowledge will often depend on the visibility of the object and the accused’s connection with the location. Occupancy does not automatically infer knowledge of the items within the dwelling.”
111Mr. Wilson had the strongest connection to the apartment. He was the tenant and habitually occupied the apartment. The firearm, however, was concealed and in an area in the small apartment that others had access to, such that I concluded it was akin to a common area in the apartment. There is no forensics evidence.
112The Crown’s case is somewhat stronger against Mr. Wilson, given his tenancy, but I am not satisfied beyond a reasonable doubt that he had constructive possession of the Colt revolver. There is no other evidence, when the totality of the Crown's case is considered, that supports a compelling inference of possession.
(ii) Lack of observation of the contraband
113Mercedeze Watson testified that she did not see the satchel in the apartment, nor did she see the ziplock baggies of drugs. Although I accepted her evidence that she did not see contraband in the unit, her evidence is not conclusive on this issue. I have found the contraband was located on the bed and was situated on the bed prior to the police entry. I cannot definitively account for Ms. Watson’s lack of observation of those items. I note, however, that the bed contained multiple items and was cluttered. Further, Mr. Robinson was on the bed and the contraband may have been concealed or partially concealed by the way his body was positioned or by the various items on the bed including a bedspread, grey blanket, and pillow cushion. Ms. Negus was on the bed as well at one point.
Drugs
114Police located 35.6 grams of crystal methamphetamine, 51.07 grams of powder cocaine and 2.19 grams of fentanyl. They were contained in baggies on the bed. When members of the human trafficking team pulled down the bed from its vertical position and placed it on the ground, the drugs were located at the headboard.
Daylo Robinson
115Evelyn Negus testified that she did not observe Mr. Robinson in the possession of illicit drugs. Although I found her to be a credible witness and I did not conclude she misled or attempted to mislead this Court, I also concluded she was naïve, and seemed to make very few meaningful inquiries about Mr. Robinson. Her evidence alone is insufficient to raise a reasonable doubt about Mr. Robinson’s possession of drugs.
116The drugs were in plain view on the bed. Mr. Robinson had occupied the bed prior to the entry of police although not immediately before. His phone was on the bed and insulin case and wallet on a bedside table.
117In R. v. Terrence, the Court of Appeal explained that passive acquiescence cannot amount to control. In Terrence, the accused was a front seat passenger in a recently stolen motor vehicle. At some point during the ride, he acquired knowledge that the vehicle, which was driven by his neighbor, was stolen. The trial judge concluded the accused had the requisite knowledge and a measure of control over the vehicle. The appeal turned on whether the accused, as a passenger, had the necessary measure of control.
118The court held that “mere passive acquiescence” cannot amount to control and that mere presence in a stolen vehicle, knowing it is stolen, “would not be sufficient to establish the measure of control which…is necessary”. Some active steps, such as encouraging, helping or directing were necessary to either establish the “power or authority” of a principal offender, or to establish aiding and abetting by a party pursuant to s. 21 of the Criminal Code.
119The court found that none of these active steps were present on the facts and overturned the conviction of the accused.
120There is no evidence connecting Mr. Robinson to drug trafficking. The unit was under surveillance for three days by police. Mr. Robinson is not observed to leave the apartment building. The drugs were in plain view and clearly the defendant had knowledge of the illicit drugs, but I am not satisfied he had the requisite measure of control, especially given my finding that he did not have exclusive control over the bed. As indicated, he was not on the bed when police entered the unit, undermining to a degree the inference of possession as result of very close proximity.
121To be clear there is no requirement the Crown be able to adduce evidence of drug trafficking to support a finding of constructive possession. However, with the particular facts in this case, the Crown's case falls short on the issue of whether control has been established. The other plausible alternative is that Mr. Wilson was in possession of the drug contraband.
122Indeed, the Crown's case in relation to Mr. Wilson’s criminal liability is demonstrably stronger. In relation to Mr. Robinson there is a reasonable basis to conclude that he was not involved in the offence. Further, I find the evidence insufficient to support a finding of joint possession.
Dalton Wilson
(i) Ownership of the diary
123The Crown points to the diary located on the floor as a highly compelling piece of circumstantial evidence. Ms. Gharabaway argues the diary belongs to Dalton Wilson.
124A photocopy of the contents of the dairy, was made an exhibit in this trial. It consists of 28 pages inclusive of the front and back cover. The cover is tattered and contains an image of a waterfall. At the bottom of the cover is “2021.” Each page contains a one-week calendar of entries. Beside each date is a passage from the Bible and a lined section for notes.
125On page 26 of the diary there are a list of weights and values. According to Detective Sean Quinn, a qualified drug expert, the page contains a drug price list. For example, it contains a reference to “zip,” which is slang for an ounce and “8 ball” a drug reference to an eighth of an ounce. Near the top of the diary page is a notation - “custies,” which Detective Quinn explained, was a slang term for a drug user and someone addicted to drugs.
126Page 27 of the diary contains the following entry - “runners 25% up to 35%.” Runners refers to individuals used to deliver illicit drugs, which the detective described was a tactic drug traffickers used to mitigate risk. The runner would be exposed to criminal liability as opposed to the drug trafficker. Detective Quinn concluded the reference to percentages is how much the drug dealer was prepared to pay in exchange for the delivery of the drug.
127A further reference in the diary to an “oz - $1600 - $1700,” falls within the range, according to the detective, of the cost of an ounce of cocaine in 2022.
128Even absent Officer Quinn’s evidence, it is clear the notations on pages 26 and 27 are most certainly a drug trafficking price list. The list is replete with drug trafficking vernacular related to the pricing of illicit drugs. There is a further reference to “weed” available at the ounce and pound level which further grounds the list as a drug trafficking “menu.”
129The daily diary, therefore, is a highly probative piece of circumstantial evidence in this case.
130The Crown submits the diary belongs to Dalton Wilson. It is in his residence and the contents suggest his authorship of the contents. The defence counters the evidence to support that conclusion is lacking and that the notebook could belong to other individuals that visited or are associated with the Port Perry apartment.
131Despite Mr. Proudlove’s able argument, I have concluded the diary belongs to Mr. Wilson. There is a notation on a page of the diary “Find Prem.” The Crown tendered as an exhibit a screenshot of Daylo Robinson’s Facebook profile page. In a comment under one of Mr. Robinson’s photos, his nickname is revealed as “Preme.” It does not make sense for Mr. Robinson to refer to himself in this way if he was the owner of the diary.
132Further, the contents of two different canteen orders are contained in the diary. It is evident that the author of the diary is in custody based on the nature of the entries. They include high sugar items. It is not controversial that Mr. Robinson is a diabetic. His condition is serious. It is unlikely that his canteen orders would contain those items. That said, I accepted Mr. Proudlove’s submission that the nature of the canteen order is insufficient to ground Mr. Wilson’s ownership. By themselves the inclusion of a list of sugary snacks do not exclude Daylo Robinson as the owner of the diary, it is just one factor I considered.
133In addition, the contacts in the diary largely consist of 905, 416 and 647 area codes. It suggests the author of the diary is based in the GTA and not in the Atlantic provinces.
134Of significance there is an entry on page 27 of the diary, “build my group in Durham/Oshawa and outsource from there 1. Port Perry 2. Oshawa/Whitby and Toronto.” Without speculating as to what that entry refers to, it contains a specific reference to Port Perry which is in Durham region and regions east of Toronto, in the direction of Port Perry. Again, that would suggest the owner of the diary is based in Ontario, specifically the region east of Toronto, where Mr. Wilson resides.
135The most compelling inference that the diary belongs to Dalton Wilson, however, is the fact that it was found in plain view on the floor of his apartment.
136I have concluded the diary does not belong to Daylo Robinson for the reasons stated nor does it belong to Evelyn Negus. Ms. Negus lives in Nova Scotia and has no criminal record and thus was unlikely to have diarized her canteen orders. The diary does not belong Mercedeze Watson, who according to her evidence was in the unit for a short period of time before police entered. The items she brought with her to the apartment included a cellphone, tattoo kit and bong.
137Neither was I persuaded the memo book belonged to a visitor of the unit. The suggestion is speculative. The diary contains private and personal observations. It contains references to efforts at rehabilitation, difficulties sleeping and experiences with pain and anxiety for instance. It is very unlikely that an unknown visitor to the apartment left a diary containing highly sensitive content including an incriminating drug trafficking menu.
138The only reasonable conclusion on these facts is that the daily diary belongs to Dalton Wilson. The diary is therefore a key piece of evidence in this case and supports the Crown’s theory that Mr. Wilson was involved in a drug trafficking scheme. I am cautious not to attribute the contents of the diary as evidence of Mr. Wilson’s propensity to traffic drugs.
(ii) Possession of the drugs
139I am satisfied beyond a reasonable doubt, that Dalton Wilson was in possession of the drugs. He was aware of the presence of drugs in his home and had control over the substances.
140In R. v. Pham, the Court of Appeal upheld a conviction for possession of cocaine for the purposes of trafficking. The apartment where the cocaine was seized belonged to Ms. Pham, however, a male companion had moved in prior to the search by police. There was evidence of drug trafficking activity at the apartment. When police entered the apartment, they found a quantity of cocaine inside a small black purse that was “sitting in full view” in the bathroom.
141The court held that that knowledge could be inferred from occupancy and from finding the cocaine in plain view in a room used by the accused which also contained her personal toiletries. The court adopted the reasons of Watt J., as he then was, in R. v. Sparling, (1988) 3 W.C.B. (2d) 422 (Ont. H.C.J.), aff’d [1988] O.J. No. 1877 (C.A.):
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.
142As to the element of control, the Appellant Pham had "an ability to withhold consent to the keeping of any drugs in her home." 18
143In R. v. Chambers, Martin J.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug."
144In concluding that Dalton Wilson had constructive possession of the drugs I have the considered the following:
(i) The drugs were in plain view on the bed. No single person had exclusive control over the bed. The bed was an area of common use. The apartment was small. (ii) The defendant was the sole tenant and main occupant of the unit. (iii) The presence of a digital scale. (iv) The contents of the daily diary support the conclusion that the defendant was involved in a drug trafficking scheme.
145When the totality of the evidence is considered, guilt is the only reasonable inference in the circumstances. The evidence demonstrates more than a quiescent or passive knowledge of the drugs. At a minimum, Mr. Wilson had the ability to withhold consent to the keeping of any drugs in his home and therefore an element of control has been established. The diary suggests participation in a drug trafficking enterprise and active authority over the illicit substances.
H. Drug expert evidence
146Given my conclusion that Dalton Wilson had constructive possession of the drugs located in the apartment, the next step is to determine whether the substances were possessed for the purposes of trafficking.
147The Crown called Detective Sean Quinn, a member of Toronto Drug Squad. It was conceded by the defence that the officer is qualified as a drug expert to give opinion evidence about the chain and distribution, prices, quality, methods of use, strength, quantity, packaging of fentanyl, cocaine and methamphetamine when sold. Further the practices, habits, and modus operandi of the drug culture.
148I accepted that concession upon review of Detective Quinn’s CV. He is well-qualified to give expert opinion evidence. He has been a police officer for 22 years. Since 2011, he has been a member of the Toronto Drug Squad and currently acts as a team supervisor.
149He has prepared in excess of 60 judicial authorizations and participated in the execution of over 200 search warrants. Most significantly he has been involved in over 300 undercover drug purchases and has acted as a confidential informant handler.
150The officer has taken multiple courses related to expert court testimony, drug trends and drug investigation techniques. He has been qualified as a drug expert at the Superior and Ontario Court of Justice on 13 previous occasions, most recently in April 2024.
151For this case, the officer prepared an “Expert Opinion Evidence Report,” which was made an exhibit in this trial.
152It was conceded by Mr. Proudlove and Ms. Enenajor that the quantities of cocaine and crystal methamphetamine found by police in this case were possessed for the purposes of trafficking. It is a reasonable concession in the circumstances.
153According to the Detective Quinn, the average “hit,” or single use of powder cocaine is approximately .1 to .2 grams. That corresponds to between 255 and 510 hits of cocaine based on the quantity of cocaine seized from the apartment. The value ranges between $3,094 and $6,128.40. This range is based on whether the cocaine was sold at the ounce or gram level. Cocaine sold at the ounce level is discounted. Cocaine sold at smaller quantifies attracts a higher price. The same principle applies to the purchase of crystal methamphetamine.
154A single “hit” of crystal methamphetamine is approximately .01 grams. Therefore 35.6 grams of crystal methamphetamine would equate to 3,560 hits. The monetary value ranges between $698.50 and $2,848 based on the value of the drug in 2022.
155These quantities are too significant to be considered for personal use, even for the heaviest of drug users.
156Detective Quinn also took into consideration that a scale was located in the unit and the fact that multiple drugs were located together. According to the officer, drug traffickers supply various substances in an effort to appeal to a larger pool of potential customers. He also concluded the presence of a firearm was relevant. That drug traffickers arm themselves with offensive weapons for protection and to intimidate others. He also opined that drug traffickers use multiple cellphones, dedicating one or more of the phones to facilitating drug transactions and the other as personal use.
157These conclusions did not strike me as particularly contentious.
158In this case, along with cocaine and crystal methamphetamine, 2.19 grams of fentanyl was also located in a baggy. Detective Quinn testified that the average single use of fentanyl is .02 grams, which is equivalent to 109 hits. At this “hit” level the value of the fentanyl seized was $438. At the gram level the value ranged between $180 and $220.
159The officer further testified that 2.19 grams is “quite high” for personal use. That fentanyl is classified as an opioid and is particularly potent and addictive.
160In the officer’s opinion, it is less common for users who are dependent on an opioid to have the ability to save money sufficient to buy the product at a higher quality and therefore benefit from a discounted price. That fentanyl users instead are driven by the immediate psychological and biological need to consume the drug.
161According to the expert, opioid abusers typically start off using less potent drugs and once tolerance is built up, tend to in his words “graduate” to a more potent substance like fentanyl.
162Although Detective Quinn concluded that the fentanyl that was seized in this case was possessed for the purposes of trafficking, he conceded in cross-examination that two grams of fentanyl could also be considered as personal use.
163Although I accepted the officers’ evidence that drug users are unlikely to purchase fentanyl at the gram level, his evidence leaves me with a reasonable doubt. The quantity of the substance in this case is not so significant, even when considering the amount that qualifies as single use, to confidently conclude the fentanyl was possessed for the purposes of trafficking.
164Further, I have considered the additional indicia of trafficking in this case including the digital scale, the seizure of a firearm and that multiple substances that were located together. These indicia considered together did not sufficiently persuade me beyond a reasonable doubt that the drug was being trafficked. 19
I. Conclusion
165There are two separate informations in this case. One charges offences contrary to the Controlled Drugs and Substances Act, the other offences contrary to the Criminal Code.
166All counts in relation to Daylo Robinson are dismissed, with the exception of count 1 (information ending 1578) – fail to comply with a release order. As previously indicated, it was conceded by the defence that on February 10, 2022, Mr. Robinson was bound by a recognizance from Nova Scotia that included a house arrest condition. For obvious reasons he is found guilty.
167Dalton Wilson is found guilty of count 1 – possession of cocaine for the purpose of trafficking and count 3 – possession of crystal methamphetamine for the purposes of trafficking. He is found not guilty of the possession of fentanyl for the purpose of trafficking, but guilty of simple possession (information ending 1577).
168Mr. Wilson is further found guilty of count 15 – fail to comply probation (information ending 1578). By possessing illicit drugs, he breached the “Keep the peace and be of good behaviour” condition of a probation order he entered into on July 5, 2021. It is conceded he was bound by that order at the time of these offences. The remaining counts are dismissed.
169I want to thank all counsel for the professional and thoughtful manner in which this matter was litigated.
H.S. Amarshi J.
Footnotes
- In addition to both accused, Evelyn Negus and Mercedeze Watson were in the unit. The charges against Ms. Negus and Ms. Watson were eventually stayed after they provided statutory declarations stating they neither had knowledge nor control of the contraband in the apartment. Ms. Negus and Ms. Watson were called by the Crown as witnesses in this trial.
- Both accused were further charged with obstructing justice contrary to s. 139 (2) of the Criminal Code. Dalton Wilson was charged with procuring contrary to s. 286.3 of the Criminal Code. Those charges were stayed mid-trial.
- The position of the bed was likened to a murphy bed.
- The container was branded “Peterson” and it is unclear the contents. It is likely men’s hair product.
- The image on the phone is partially blocked by notifications.
- The Crown tendered a diagram of the unit prepared by DC Jiri. DC Taylor references the diagram in his evidence to explain where various items he viewed were located.
- The terms constructive and joint possession are sometimes used interchangeably. An accused can be found in both constructive and joint possession – see R. v. Lopez-Restrepo, 2018 ONCA 887, at para 54.
- R. v. Morelli, 2010 SCC 8, at para. 16.
- [R. v. Pham, 2005), at para 17.
- R. v. Bains, 2015 ONCA 677 at para 157.
- R. v. Villaroman, 2016 SCC 33, at para. 35.
- See also discussion in R. v. Brown, 2023 ONSC 901.
- R v. Knezevic, 2016 ONCA 914, at paras. 30-34.
- I was initially concerned that she did not recall that she picked up Ms. Watson in her vehicle along with Dalton Wilson. On this point, I preferred Ms. Watson’s evidence. Despite this gap in her recollection, I concluded that she was a reliable witness.
- It was established during her evidence that Daylo Robinson is not the father of her child.
- When considering alternative theories of liability, the British Columbia Court of Appeal in R. v. To, cautioned at para. 41, “It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.”
- Officer Paro located the defendants in the bathroom.
- Legal principles as summarized in R. v. Thompson, 2010 ONSC 2997.
- I did not consider Detective Quinn’s evidence that the seizure of multiple cellphones in the apartment as a factor that is supportive of drug trafficking to be particularly persuasive in the context of this case. Five cell phones were seized. There were four occupants. Two of the cell phones, had screensavers that identified the owners of the cellphone and hardly anonymous – impractical devices for transacting drug deals.