ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
ZOLTAN MOOTOO
JUDGMENT
Evidence Heard: September 23,24,25,26, 2025.
Delivered: October 22, 2025
Mr. Avik Ghosh counsel for the Crown
Mr. David Campos counsel for the defendant
KENKEL J.:
Introduction
1Police responded to a 911 call for help in which both a woman and child were heard screaming. The officers were told by the operator that it sounded like the father had hit the child. The officers directly entered Mr. Mootoo’s residence and did a quick visual search looking for the caller and her daughter. They didn’t find them. It turned out the caller was in the adjacent house, right beside the mutual wall at the time of the call. The GPS trace had led police to the wrong door.
2However, the quick visual search of the residence did reveal a large-scale drug laboratory on the main floor which was in active operation pressing pills. Mr. Mootoo was arrested steps away from that room. He was the only one in the residence.
3Mr. Mootoo was charged with:
1 – Possession of a pill press s 7.1 CDSA
2 – FTC with probation – keep the peace s 733.1(1)
3 – FTC probation – reside condition s 733.1(1)
4 – Careless storage of ammunition s 86(1)
5 – Produce Metonitazine s 7(1) CDSA
6 – Possess Metonitazine FTP of Trafficking s 5(2) CDSA
7 – Possess Bromazolam FTP s 5(2) CDSA
8 – Possess Methylenedioxymethamphetamine FTP s 5(2) CDSA
4At the conclusion of the evidence, the defence abandoned the s 8 Charter application regarding the warrantless entry and search of Mr. Mootoo’s residence. It was plain that the police were responding to a dropped 911 call which justified a direct entry to ensure public safety – R v Godoy, 1999 CanLII 709 (SCC), [1998] SCJ No 85. The visual search of the residence was limited, fast and consistent with the officer’s purpose. Several circumstances suggested to the officers that they had the right house, including the fact that it was the one with the lights on, there was some woman’s clothing on the upper floor and there was a room with pink children’s toys. Mr. Mootoo said that a woman and child had been in the residence earlier.
5Constable Berezin took less than a minute from the time of entry to inspect the entire house. The drug lab was one of the last rooms checked. I agree with the defence that there was no evidence of a breach from that search or the later limited public safety search by the special team that monitored levels of chemicals and checked potential hazards to the neighbourhood prior to the execution of the search warrant. There was no challenge to the warrant.
6The defence also confirmed that the Charter application alleging breaches of sections 9 and 10 referred only to detention and right to counsel prior to arrest. There is no allegation of breach after arrest. The Crown conceded that counts 3 (FTC – Reside) and 4 (Ammunition) should be dismissed.
7The submissions of counsel identify the following issues for decision:
Has the Crown proved the drug production and possession counts alleged beyond a reasonable doubt?
Has the Crown proved the probation breach alleged (KTP) beyond a reasonable doubt?
Charter s 9 – Arbitrary detention of the accused during the search
Charter s 10(a) – Failure to advise of reason for detention
Charter s 10(b) – Failure to provide right to counsel advice on detention
Charter s 24(2) – Application to exclude evidence
Detention During the Search of the Residence – Charter ss 9,10,24(2)
8The defence submits that the detention of Mr. Mootoo during the initial entry and search was arbitrary, contrary to s 9 of the Charter. Mr. Mootoo was detained for less than a minute while P.C. Berezin did a public safety search of the rooms in the house. It was reasonable for P.C. Barak to conduct a brief, “pat down” search for weapons given the details of the 911 call. The evidence showed it was necessary for the safety of potential occupants and the safety of the officers that Mr. Mootoo be detained during the inspection of the house.
9The defence submits that Mr. Mootoo should have been advised of his right to call a lawyer during the detention prior to his arrest. Section 10 of the Charter is engaged upon detention. Mr. Mootoo was immediately informed of the reason for police entry as required by s 10(a) of the Charter. P.C. Barak asked him if “everyone was ok” and asked him about the woman and child they were searching for. Mr. Mootoo said the woman and child left “ages ago” but of course the police checked.
10The evidence of the officers showed that the advice required by s 10(b) was briefly suspended in a dynamic situation for safety reasons as the officers tried to determine whether there were injured parties in the home. Once the drug lab was discovered, Mr. Mootoo was arrested. He was provided with right to counsel advice and there is no allegation of breach of sections 8, 9 or 10 of the Charter after that point.
11I find that the officers’ actions were reasonable and there was no breach of sections 9 or 10 of the Charter. In the alternative, even if the brief detention without right to counsel advice were found to be a technical breach of both sections 9 and 10, that could not reasonably lead to exclusion of the drug laboratory evidence on the test set out in R v Grant, 2009 SCC 32. The breach would not be serious where it was measured in seconds and followed by agreed compliance with the right to counsel requirement. There would have been a brief impact on the accused’s s 9 right, and no real impact on his s 10 rights. Exclusion of the drug lab evidence as a remedy would be so disproportionate that it would bring the administration of justice into disrepute.
Proof of the Charges – The Submissions of Counsel
12The Crown submits that strong circumstantial evidence proves Mr. Mootoo’s participation in the drug lab operation:
The lab was not hidden. It occupied the main room on the main floor.
Chemical buckets, caps, bottles and labels for codeine were in the garage where Mr. Mootoo had been before he answered police calls.
Pill press cylinders and stamps were in the garage and lab room.
On the floor of the laundry room right beside the drug lab there was clothing covered in white dust and a mask on the floor.
The lab was in full operation producing pills when discovered by police.
The pill production made a loud noise audible outside the production room.
Numerous personal items found in the house show Mr. Mootoo was residing there. (Visa debit card, puffer/inhaler, OCJ driving suspension, BMW parts invoice, Toronto parking penalty notice, Auto-speed infraction notice, Red light camera infraction notice, MOT notice, OCJ Undertaking – all bearing the name Zoltan Mootoo.)
Mr. Mootoo was the only person in the residence.
The high value of the illegal drug lab and its contents which would not be entrusted to someone not part of the scheme. (Expert evidence showed that the total value of the drugs seized was approximately $2,577,000.)
13The defence submits that the Crown has not proved Mr. Mootoo was in possession of the drugs for several reasons:
Mr. Mootoo was present, but he was not covered in white dust. Dust filled the air in the lab room.
The drug lab was concealed. “We have to assume that nothing indicated to the accused that this was a drug lab.”
The packaged drugs and many of the drug production items found about the house were not in plain view.
While there are many items bearing the accused’s name in the house, there are other items with the names of other people, including one passport.
Missing evidence - the Crown did not provide fingerprints or DNA linking Mr. Mootoo to the lab. There was no cellphone extraction analysis of his phone. The Crown did not show any evidence as to who owns the house.
Mere presence at the scene of an offence does not prove participation.
Mere Presence
14In my view there are two errors that must be avoided when assessing evidence of the accused’s presence at the scene of an offence. The first starts with the observation that in many cases “mere presence” has been found by courts to be insufficient to prove participation in an offence. The error is to then conclude that presence is a category of evidence which has been found by appellate courts as a matter of law to always be insufficient to prove participation in an offence. The argument therefore assigns a zero value to the fact of presence in any analysis.
15Presence at the scene of an offence is a circumstance. As a circumstance it rarely stands alone. As with all circumstantial evidence, the value of that evidence depends on the context. Mere presence at the scene of an illegal prize fight held outdoors by a major road without evidence of active participation did not prove the bystanders were parties to an offence by aiding or abetting – R v Coney, (1882) 8 QB 534, cited in R v Dunlop and Sylvester, 1979 CanLII 20 (SCC), [1979] SCJ No 75 at para 13. On the other hand, unauthorized presence inside the cash room of a closed store in the dead of night with alarm bells ringing may well lead to a different conclusion. While I agree with the defence that there are many cases where courts have found that “mere presence” at a crime scene is insufficient proof of participation in an offence, the fact of presence remains a relevant circumstance to be considered in the assessment of all of the evidence at trial. See for example: R v Puentes-Reed, 2025 ONCA 441 at para 41.
16In cases of alleged possession, there is a second concern related to presence and occupancy of a residence. A court cannot presume that an occupant in a place such as an apartment is necessarily deemed to be in possession of all items within that place. Applying a presumption that an occupant was in possession of Items found beside another person in another room “unless he could rebut that presumption” reversed the burden of proof on the central issue – R v Watson, 2011 ONCA 437.
Analysis
17In the principal case relied upon by the defence, the trial court held that presence at the doorway of a room with minimal other evidence linking the accused to that room did not prove he knew there was a gun concealed within clothing in the closet – R v Turner, 2012 ONCA 570. In that closet the police found passports belonging to two other people, although both denied knowledge of the gun.
18The Turner case and others cited by the defence are quite different from the facts in this case. This was not a true residence where illegal items were found as was the case in Turner and Watson. This was a large-scale drug production lab with evidence of living quarters on the upper floor. The lab was in operation, and the machinery was producing pills when the officers entered. The noise of the operation was audible on the main floor. The accused was the only person in the residence and the sudden, unexpected entry of the police did not leave time for anyone else to flee.
19Mr. Mootoo was not covered in white dust which he might have been if was found in the production room. Instead, he emerged from the garage where supplies for the production were kept. A mask and clothing covered in dust was on the floor by the washer and drier.
20I disagree with the defence that nothing would have indicated to the accused that this house was a drug lab. The tarp only partially covered the production room and there was drug equipment and chemicals in the main area. There was drug related clothing on the laundry room floor. Mr. Mootoo’s possessions were upstairs in the residence area, and he was present in the main floor which was devoted to drug production. Even though the packaged drugs outside the production room were not in the open, considering all of the evidence it is simply not possible that an adult person in that residence would not be aware of the drug production operation.
21The defence is correct that there were items found in the house that had other names on them. The mailing packages with shipping labels from China and the United States showed sender and receiver names for other persons. The drug production context makes it highly unlikely that any of those names are real. I can place no weight on the finding of those names, nor does a credit bureau letter sent to another address with the name “Shirley Mootoo” found among Mr. Mootoo’s personal items reasonably indicate an alternate suspect. I agree with the defence that the passport might suggest the possible involvement of someone else in the enterprise, but even if others were involved that would not assist Mr. Mootoo on these facts.
22Given the high value of the drug inventory and the drugs being produced and the secretive, illegal nature of the enterprise, it’s reasonable to infer that presence in that residence was restricted to those involved in the operation and those who knew them. Mr. Mootoo had sole control of the premises at the time the police entered.
23A commercial pill press cannot fill itself with controlled substances, and it cannot turn itself on. I find the circumstances cited by the defence do not reasonably leave a doubt, nor is any doubt left on the evidence as a whole. The Crown has proved that the evidence reasonably leads to only one conclusion – Mr. Mootoo was operating the pill production lab at the time of his arrest, and he had possession of the drugs and drug making equipment that was seized by the police.
The Fail to Comply Charge
24It was agreed that Mr. Mootoo was subject to a probation order with a condition to “keep the peace” at the time of arrest. The finding on the drug charges proves the breach alleged in count 2.
Conclusion
25Counts 3 and 4 are dismissed. There will be findings of guilt on the remaining counts.
Delivered: October 22, 2025.
Justice Joseph F. Kenkel