R. v. Lazar, 2026 ONCJ 52

ONTARIO COURT OF JUSTICE

CITATION: R. v. Lazar, 2026 ONCJ 52

DATE: 2026 02 02

COURT FILE No.: Hamilton 23-47107312 and 24-47102453

BETWEEN:

HIS MAJESTY THE KING

— AND —

LILLIAN LAZAR and ZWELI MHLONGO

Before Justice J.P.P. Fiorucci

Heard on July 7, 8, 9, 10 and September 3, 2025

Reasons for Judgment released on February 2, 2026

Tara Mimnagh Agent for the Public Prosecution Service of Canada

Kevin Regimbal Counsel for the Provincial Crown

Rameez Sewani Counsel for the accused Lillian Lazar

Laura Giordano Counsel for the accused Zweli Mhlongo

FIORUCCI J.:

Overview

1Lillian Lazar and Zweli Mhlongo lived in a townhouse unit they rented in Hamilton. In November 2023, the police began a drug trafficking investigation into Mhlongo. The investigation included surveillance of a Mercedes motor vehicle that both Mhlongo and Lazar would use. The police came to believe that the couple was in possession of cocaine for the purpose of trafficking. The police applied for, and were granted, judicial authorization to search their residence and the Mercedes.

2The search warrants were executed on December 12, 2023. In the attached garage of the residence, the police found a piece of furniture, referred to as a “pedestal” throughout these proceedings. The pedestal had no apparent means of access. No latch, no keyhole, no handle on the outside. A police officer hit the bottom side of the lid with a hammer to open it. The police also found magnets inside the residence. When these magnets were applied to the left side of the pedestal under the lid, the lid would pop open. Within the pedestal, police located and seized a significant quantity of cocaine, some fentanyl, two firearms, loaded magazines, ammunition and indicia of trafficking. The items within the pedestal had significant value. In one of the bedrooms, the police located a bag that contained cash. Aside from a garage door opener, nothing of evidentiary value was found in the Mercedes.

3Lazar and Mhlongo were both charged with possession of the drugs for the purpose of trafficking, firearms possession offences, and possession of proceeds of crime. Mhlongo was also charged with offences relating to possession of firearms and a firearm device while he was bound by weapons prohibition orders, and with failure to comply with conditions of a release order.¹

4The central issue at trial was whether the Crown had proven beyond a reasonable doubt that Lazar and Mhlongo had knowledge of the drugs, guns and other items inside the pedestal. The Crown was required to prove constructive possession of these items by each accused under s. 4(3)(a)(ii) of the Criminal Code or prove that the two accused were in joint possession of the items under s. 4(3)(b) of the Criminal Code.

5The Crown relied on circumstantial evidence including police surveillance on dates in November and December 2023, Lazar and Mhlongo’s occupancy of the residence, the type of magnets the police found in the home, where inside the home the magnets were found, and the fact that the magnets opened the pedestal. The Crown also relied on the reasonable inference that someone other than Lazar and Mhlongo was unlikely to have left drugs and firearms of such great value in the pedestal without the knowledge of Lazar and Mhlongo.

6Lazar testified and gave exculpatory evidence regarding various short meetings police saw her attend during surveillance. She also testified that the pedestal was an item of furniture that was already in the garage when she and Mhlongo moved into the townhouse in about May 2023. Lazar denied knowledge of the contents of the pedestal and denied participating in drug trafficking. Mhlongo did not testify.

7On January 14, 2026, I found Lazar and Mhlongo not guilty of all charges and advised the parties that written reasons for my decision would follow. These are my written reasons.

The Evidence and Background Facts

Mhlongo’s Release Order and Weapons Prohibition Orders

8On October 13, 2023, Mhlongo entered a release order relating to outstanding charges in the Provincial Court of Newfoundland and Labrador in St. John’s. Lazar was one of Mhlongo’s sureties on this release order, which was in effect in November and December 2023.² At the time of the police investigation and the execution of the search warrants, Mhlongo was also bound by three separate weapons prohibition orders.³

The Surveillance in November and December 2023

9In November 2023, the Major Drugs and Gangs Unit of the Hamilton Police Service began a drug trafficking investigation. Mhlongo was the target of this investigation.⁴ At the time, Lazar and Mhlongo lived together with their infant son at 615 Rymal Road East, Unit 43 in Hamilton (the “Residence”) and would both drive a 2017 Mercedes C4A sedan with the licence plate CVLY 981 (the “Mercedes”). The Residence was a two-storey, two-bedroom townhouse with a basement and an attached garage.

10The police conducted surveillance on certain dates in November and December 2023. The surveillance focused on tracking the movements and activities of Lazar and Mhlongo in the Mercedes. In the Agreed Statement of Fact filed as Exhibit 3, the parties agreed that an expert would testify that generally “short meetings” are consistent with a drug transaction. The parties dispensed with the need to call viva voce expert evidence on this issue. As I will explain in the analysis portion of my judgment, the police observed Lazar to be involved in various short meetings but not Mhlongo.

11During surveillance, the police did not observe activity consistent with drugs being trafficked from the Residence. PC Ryan Tweedle believes police officers conducted surveillance on the Residence “for long periods of time” and he recalled being parked outside the Residence for hours. PC Tweedle agreed with Mhlongo’s counsel that he did not observe a steady stream of people going into and coming out of the Residence or stopping by for short visits.

The Search Warrants Issued

12On December 11, 2023, a justice issued a s. 11 CDSA search warrant for the Residence and the Mercedes. Lazar and Mhlongo brought a pre-trial Charter application to challenge the issuance of the search warrant for the Residence but abandoned their joint application before trial.

13In addition to the warrants granted for the Residence and the Mercedes, the police obtained search warrants for 256 Mohawk Road East, Apartment 401, Hamilton, which was another address associated to Lazar, and 144 Beach Road, Hamilton, an address that police observed Lazar attend during surveillance.

The Execution of the Search Warrant at the Residence on December 12, 2023

14On December 12, 2023, just after 8:30 a.m., PC Scott Reider of the Offender Management Unit of the Hamilton Police Service conducted a door knock at the Residence. PC Reider was tasked with making initial contact with Lazar and Mhlongo under the guise of performing a bail compliance check in relation to Mhlongo’s release order.

15Both Lazar and Mhlongo were inside the Residence when multiple police officers attended to execute the search warrant. At 8:38 a.m., PC Reider arrested Mhlongo. At 8:40 a.m., PC Kayla Huckerby arrested Lazar.⁵ Police officers then cleared the Residence.

16Det Cst Ryan Goch was the central exhibit officer tasked with creating an entry video of the Residence before police officers conducted their search.⁶ He began filming the entry video at 9:01 a.m. Det Cst Goch agreed with Lazar’s counsel that, although there may have been some things disturbed during the clearing process, the purpose of the entry video was to record what the Residence looked like before the police started searching. He testified that the search of the Residence began at 9:10 a.m., after the entry video was completed.

17Det Cst Goch took photographs, and sometimes videos, of exhibits that other officers located in the Residence. Det Cst Goch agreed that, insofar as possible, exhibits are photographed in the position and location that they are found in order to have the best evidence regarding how and where a particular item was found.

18The police officers who located and seized items of evidentiary value in the Residence were PC Tweedle and Sgt Michael Zwolak.

19PC Tweedle located the pedestal in the garage at 10:55 a.m. When he lifted it, tilted it and “shook it a little bit”, he could hear and feel something sliding around and knew “there was definitely something inside of it”. PC Tweedle could not figure out how to open the pedestal, but did not try very hard. He alerted Det Cst Goch that the pedestal was something of interest and asked Goch if he could figure out how to open it. According to PC Tweedle, Det Cst Goch opened the pedestal “pretty much right away”.

20Det Cst Goch testified that when PC Tweedle asked him to determine whether the pedestal would open, he saw that “there was no apparent openable side” and that the “top and the bottom seemed to be secure”. There were no doors or drawers. Det Cst Goch then testified:

As I took a closer look at the lid, I could feel a tiny bit of play up and down. At that point, I believe there was some sort of hidden latch or something, there was nothing visible on the outside. So I ended up using a hammer to hit the bottom side of the lid, and it opened at that point.

21Det Cst Goch went on to describe the metal mechanism inside the pedestal, which confirmed his belief “that it was some sort of hidden trap location based on the way the mechanism was all self-contained inside the furniture”. He said, “within the wooden compartment, there is a metal hinge that had like a top plate that mounted the top of the pedestal onto it and then there was another metal latch on what would be the front side with some form of a piston that went to the left side of the pedestal, which is where we later used the magnets to move that piston which opened the latch”.

22Once the pedestal was open, Det Cst Goch assisted PC Tweedle as he searched inside of it, taking photographs and videos as PC Tweedle was finding items. The pedestal contained the following items: (i) a loaded Ruger handgun, model EC9S, bearing serial number 45653013; (ii) a Glock 19 handgun, equipped with modifications including a Polymer80 frame, an aftermarket barrel, and a full auto sear on the rear of the slide (bearing serial number BGBG025 on the Glock 19 slide, no serial number on the Polymer80 frame or aftermarket barrel, and no magazine loaded in the firearm); (iii) a loaded Glock magazine; (iv) a loaded SHK SGM Tactical extended magazine; (v) 210.79 grams of cocaine; (vi) 2 digital scales with residue; (vii) a cocaine press with residue; (viii) 8.87 grams of fentanyl; and (ix) multiple used and unused Ziploc baggies of various size.

23Lazar and Mhlongo admitted that the quantities of cocaine and fentanyl were consistent with possession for the purpose of trafficking, that the value of the cocaine was between $12,750.00 (if sold by the ounce) and $25,294.00 (if sold by the gram), and that the value of the fentanyl was between $1,596.00 and $1,774.00.⁷ They also admitted that the Ruger EC9S and the Glock 19 with its modifications are prohibited firearms which were examined and test fired and that a total of 46 rounds of ammunition was seized from within the pedestal.⁸ No issue was taken with the operability and classification of the firearms.⁹ Neither Lazar nor Mhlongo were holders of an authorization or licence under which they could legally possess either of the two firearms, or the devices or ammunition seized.¹⁰

24PC Tweedle testified that, at approximately 11:14 a.m., after searching the pedestal, he continued to search the Residence in the kitchen. On the kitchen table, he found a green reusable bag that contained a digital scale that had suspected cocaine residue on it. There was a Great Canadian Rewards card on top of the scale that had the name Lillian Mhlongo on it and had a white powder residue on it believed to be cocaine. The bag also contained metal spoons with some residue, some tin foil, and documents with Lazar’s name on them addressed to 256 Mohawk Road East, Apartment 401, Hamilton.

25When PC Tweedle continued searching the kitchen, he found eight cell phones which he seized at 11:15 a.m. He testified in-chief that “five were from the drawer of the coffee table and there's a drawer in the kitchen that contained three”. When cross-examined by Lazar’s counsel, PC Tweedle reiterated that he found five of the phones in a drawer in a coffee table but “didn’t find it to be of great relevance”. He said, “I think they were dead phones…it was just five dead phones in a drawer”. When Lazar’s counsel asked PC Tweedle whether he would have asked Det Cst Goch to photograph the five phones he found in the coffee table drawer, he said:

I would have. Anytime I seize anything, I alert the exhibits officer of the find, and then I seize something and request a photo.

26When Lazar’s counsel questioned PC Tweedle about the fact that there were no photographs taken of cell phones inside a drawer, he said he didn’t know if a photograph was taken or “if it just didn't turn out or what happened”.

27The Non-Drug Exhibit Log, filed as Exhibit 9 on the trial, lists at items 9, 10 and 11 the three cell phones PC Tweedle says he seized at 11:15 in a kitchen drawer.¹¹ However, in the entry video made by Det Cst Goch about two hours earlier, three cell phones are seen on the kitchen counter. Det Cst Goch agreed with Lazar’s counsel that, if PC Tweedle found cell phones in a kitchen drawer, he would have to alert Goch so that a photograph could be taken. No photographs exist of cell phones in a drawer. When Det Cst Goch was shown a photograph of three cell phones on the kitchen counter, he said he could not recall photographing cell phones in a drawer.

28Lazar’s counsel asked PC Tweedle about the three phones he said he found in a kitchen drawer. Counsel directed PC Tweedle to a note he made in his notebook for 11:15 a.m. which said, “phones on counter x3”. At this point, PC Tweedle said: “From my notes, it says it's on the counter. I would go with my notes instead of my will say, which was done after”. However, when PC Tweedle was then confronted with the fact that both his will say and the Non-Drug Exhibit Log refer to him finding three phones in a kitchen drawer, he agreed that one possibility was that the three phones were removed from the drawer and put on the counter so that they could be photographed, and then seized. Ultimately, PC Tweedle said that he could not recall anything about where the three phones were found in the kitchen.

29Sgt Zwolak was present for the entry to the Residence at 8:38 a.m. Once Sgt Zwolak entered the Residence, he cleared the second floor and found the couple’s child sleeping in a bedroom. He moved a phone that was on the pillow beside the child and put it in the area of the stairs so it wouldn’t wake the child. He called it “Lillian’s phone” in his notes but did not note why he thought it belonged to Lazar. Sgt Zwolak did not document that he put the phone in the area of the stairs, was not exactly sure where at the top of the stairs he put it, and did not photograph or document where he put the phone. Shortly thereafter, Sgt Zwolak left the Residence and attended at 256 Mohawk Road East, Unit 401 to deal with the search warrant for that address, arriving there at 9:18 a.m.

30Sgt Zwolak returned to the Residence at Rymal Road to assist with the search at 10:25 a.m. At 11:15 a.m., he seized the phone from the stairway and put it back on the pillow “just to document its initial position for photos”. He agreed with Lazar’s counsel that he could not recall alerting anyone at the time he located the phone that it may be of interest. When asked whether this phone was in the same location that he had put it before leaving for the Mohawk Road address, Sgt Zwolak said, “to the best of my knowledge, yes”.

31At 11:20 a.m., Sgt Zwolak seized cash from a Gucci bag that was on the floor of one of the bedrooms. He testified that, to his knowledge, he did not count the cash but said the bag had a stack of $20 bills.¹² The Non-Drug Exhibit Log, Exhibit 9 on the trial, lists cash found by Sgt Zwolak in a northeast upstairs bedroom closet but does not mention the Gucci bag. Furthermore, the Non-Drug Exhibit Log lists the denominations of the cash to be: 6 x $100.00, 4 x $50.00, 99 x $20.00, 1 x $5.00 for a total of $2,785.00.

32Sgt Zwolak did not testify that he found denominations other than $20 bills in the Gucci bag in the bedroom. The photographs of the Gucci bag and cash do not show any denominations other than $20 bills. There is an absence of evidence as to who counted the cash that was seized by Sgt Zwolak. There is also no evidence explaining why bills of denominations other than $20 bills are listed on the Non-Drug Exhibit log but not depicted in the photographs nor mentioned by Sgt Zwolak in his testimony.

33At 11:27 a.m., Sgt Zwolak located and seized a black jacket from the sofa in the living room. The left pocket of the jacket contained two $20 bills and a photo ID card for Mhlongo.¹³

34Sgt Zwolak testified that, at 11:30 a.m., he located magnets on the landing of the stairs located across from the garage door. Crown counsel showed Sgt Zwolak the photograph at Tab 1, page 25 of the Crown Photo Book (Exhibit 2) and the officer confirmed that it depicted the magnets he located on the stair landing, which was directly across the hallway from the garage. The picture at page 25 is blurry but appears to depict the black magnets on top of a box on the stair landing.¹⁴ Sgt Zwolak testified that he seized these black magnets because he was aware that a piece of furniture had been located that had a hidden compartment. In Court, during his examination-in-chief, Sgt Zwolak demonstrated how the black magnets can be used to open the pedestal by applying the magnets to the left side of it.

35In cross-examination, Sgt Zwolak confirmed that he had no notation of the black magnets being on the stair landing when he first entered the Residence, which was 8:38 a.m., or at any other time after he returned to the Residence at 10:25 a.m., until he seized them at 11:30 a.m. The following exchange occurred between Lazar’s counsel and Sgt Zwolak regarding the black magnets:

Q. And you're not aware of, or do you know of whether those magnets had been touched, moved, manipulated at all by any of the other officers who were in the residence?

A. No, I don't.

Q. You can't say one way or the other...

A. I can't.

Q. ...you're just not sure?

A. I can't say.

36Sgt Zwolak testified that he found the silver magnets “in the area of the refrigerator” in the kitchen. In examination-in-chief, Sgt Zwolak confirmed that the picture at Tab 1, page 28 of the Crown Photo Book (Exhibit 2), shows the silver magnets on the fridge but he did not recall that they were on the fridge and did not have a note to assist him.¹⁵ When questioned by Lazar’s counsel in cross-examination, Sgt Zwolak said that he remembered finding the silver magnets, but does not have any specifics about where, how or when he found them. Sgt Zwolak also made no notes about turning the silver magnets over to the exhibit officer, Det Cst Goch. Item #13 of the Non-Drug Exhibit Log, which was made Exhibit 9, refers only to the magnets located by Sgt Zwolak on the “main floor stair landing”. Det Cst Goch testified that he does not believe there is any log or notation in his notebook or will say about where, how and when Sgt Zwolak located the silver magnets.

37Crown counsel showed Sgt Zwolak a demonstration video Det Cst Goch made on December 12, 2023, showing Zwolak opening the pedestal with the silver magnets by applying them to the left side of the top of the pedestal which opened the latch and the top of the pedestal. The demonstration video was made Exhibit 7 on the trial.

The Search of the Mercedes

38At 10:31 a.m., Det Cst Goch made an entry video of the Mercedes that was parked in the driveway of the Residence, but he was not involved in the search of the vehicle. Det Cst Goch agreed with Mhlongo’s counsel that, as the exhibit officer, he did not receive any evidence of value that was found in the Mercedes. No police witness testified about searching the Mercedes, but Sgt Zwolak said that when he exited the Residence at 11:50 a.m., he closed and locked the front door, left through the garage door and closed the garage door using the opener from the Mercedes.

Pills and Debt Lists found at 144 Beach Road

39Det Cst Goch also processed the exhibits from the search that was conducted at 144 Beach Road on the same day. He testified that large quantities of drugs were seized at the Beach Road address. There were multiple bags with large quantities of pills including oxycodone (PERCODAN), Dilaudid, Lorazepam and other drugs. The police also located debt lists at 144 Beach Road. On consent, a picture of debt lists located and seized from 144 Beach Road was made Exhibit 10 on the trial. The name “Lily” appears on three of the lists with amounts beside the name.

The Search of 256 Mohawk Road East, Apartment 401

40Det Cst Kyle Lentz participated in the execution of the search warrant at 256 Mohawk Road East, Apartment 401. Nothing of evidentiary value was found at this address.

The Legal Principles

41In this joint trial, I must determine whether each of the accused is guilty separately. That is, for each individual accused, I must determine whether he or she is guilty based on the admissible evidence against him or her. However, for each accused, the W.(D.) framework requires me to evaluate any evidence that, if true, is capable of preventing the Crown from proving beyond a reasonable doubt an element of the offence. This includes the testimony of the accused, or defence witnesses, or evidence arising from the Crown case. It also includes the testimony of a co-accused in a joint trial.

42A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”.¹⁶

43When the Crown’s case consists wholly or substantially of circumstantial evidence, in order to return a guilty verdict, the trier of fact must be satisfied that the only reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty.¹⁷ I am mindful that inferences consistent with innocence do not have to arise from proven facts, as this would put “an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence”.¹⁸

44When assessing the circumstantial evidence, I must consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt.¹⁹ 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”.²⁰ The Crown does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”.²¹ As the Supreme Court of Canada noted, “the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”.²²

45Circumstantial evidence “does not have to totally exclude other conceivable inferences”.²³ The trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable.²⁴ Alternative inferences must be reasonable, not just possible.²⁵

46Section 2(1) of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code. Any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code. That section reads:

4(3) For the purposes of this Act,

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

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

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

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

47Section 4(3) creates three types of possession:

(i) personal possession as outlined in section 4(3)(a);

(ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and

(iii) joint possession as defined in section 4(3)(b).²⁶

48In the case of Lazar and Mhlongo, the Crown sought to establish constructive or joint possession of the drugs, firearms and other items in the pedestal as well as the cash.

49Constructive possession under s. 4(3)(a)(ii) is established where the Crown proves beyond a reasonable doubt that 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 place 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.²⁷

50In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.²⁸

51In 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.²⁹

52When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession.³⁰

53Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself.³¹ A reasonable inference may be drawn that a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the substance.³² A similar inference may be drawn that a firearm is property of a nature that simply would not be the subject of unknowing possession.³³

Analysis

54The Crown theory is straightforward as are the circumstances surrounding the alleged offences. The Crown says that both Lazar and Mhlongo are drug dealers which is established by the activities the police witnessed during surveillance and the discovery of the valuable stash of drugs and guns in the pedestal in the garage of their home, as well as the magnets which were the “keys” used to access the pedestal. The Crown says that, considering the totality of the circumstantial evidence, the only reasonable inference that can be drawn is that both Lazar and Mhlongo had knowledge of the contents of the pedestal. Lazar’s exculpatory evidence should be rejected and should not leave the Court with a reasonable doubt about any of the charges faced by both accused.

55There are pieces of circumstantial evidence which cumulatively lead to the inference that Lazar and Mhlongo had knowledge of the contents of the pedestal. The inference might even be characterized as a strong one. The drugs in the pedestal had significant value. The firearms, magazines, and ammunition in the pedestal were items of property that human experience tells us simply would not be the subject of unknowing possession.³⁴ Lazar and Mhlongo were both occupants of the Residence. They clearly had the ability to exclude others from the Residence and exercised control over the Residence and the attached garage where the pedestal was found. Magnets were found inside the Residence which could be used to open the pedestal. With respect to Lazar, the police witnessed her having short meetings with individuals, which were consistent with drug transactions.

56It is clearly an available inference that Lazar and Mhlongo had knowledge of the contents of the pedestal. However, the issue is whether it is the only reasonable inference. The alternative inference that has been advanced by Lazar and Mhlongo is that the pedestal was left in the garage by someone else, possibly previous tenants, and that the contents of the pedestal belonged to this unknown person or persons. If so, the true owner of the drugs and firearms was most careless or perhaps, as suggested by the defence, this person or persons had no choice but to leave the pedestal in the garage because of whatever circumstances existed at the time they left the Residence.

57Having considered all of the circumstances, I am unable to say that the defence theory is not “plausible” or a “reasonable possibility”. Even if it is unlikely, I cannot find that it is “irrational or fanciful”. For the reasons that follow, I am left in a reasonable doubt that Lazar and Mhlongo had knowledge of the drugs, firearms, and other items found in the pedestal. I am also left in a reasonable doubt that the cash found in the Residence was proceeds of crime.

58I have considered Lazar’s evidence in the context of all the evidence. I am unable to identify any material flaws in the substance of her evidence or the way she testified. Generally, I found Lazar to be a credible witness. As I will explain, some of her evidence was supported by independent confirmatory evidence. Crown counsel’s challenges of Lazar’s testimony during cross-examination focused on the implausibility of Lazar being able to afford her drug habit on the limited income she had, without supplementing her income by trafficking in drugs, the unlikelihood that she could possess the cash she had in the home given her limited income, and the implausibility that the items of significant value in the pedestal were there unbeknownst to her and Mhlongo. The Crown also questioned Lazar about the multiple short meetings with individuals, sometimes more than one a day, suggesting that she was selling drugs rather than buying them as she claimed in her testimony. Lazar withstood the Crown’s attacks to her credibility. For the most part, I found her evidence to have been unshaken in cross-examination. Lazar’s testimony contributed to my finding that I am left in a reasonable doubt about her and Mhlongo’s knowledge of the contents of the pedestal.

59Lazar testified about having developed a drug addiction to opiates after having plastic surgery in 2020. She was prescribed Percocets. After her prescription finished, she began to experience withdrawal symptoms and, with the assistance of friends, began to seek out the pills on the streets. According to Lazar, she continued using pills from 2020 onward but was off and on at times because she would try to get help at opiate clinics. The opiate clinics helped but she would sometimes relapse.

60In May 2023, when she and Mhlongo moved into the Residence, Lazar’s addiction was very bad. By October 2023, after Mhlongo returned from being away in Newfoundland for about a month and a half, her addiction was the worst it had ever been. Lazar estimated that by October 2023, she was taking between 50 to 100 pills a day. She testified that she continued to use pills throughout November and into December 2023.

61Lazar testified that, after she became addicted to Percocets, Mhlongo also started using the pills. The couple attended an opiate clinic together and were prescribed Suboxone, a medication used to treat opioid use disorder by reducing cravings and withdrawal symptoms. According to Lazar, Mhlongo used the Suboxone properly and got clean, while she failed to take it as prescribed and continued using pills. She testified that she would stop using pills a day or two before her appointments at the opiate clinic “so it wouldn’t show up” and would use the Suboxone until her appointment. Then, after the appointment, she would start taking pills again. Lazar testified that she was not truthful with Mhlongo and hid from him the fact that she continued taking pills. She also hid from him the extent of her addiction and how heavily she was using.

62On November 23, 2023, Sgt Zwolak observed both Lazar and Mhlongo exit the Stipley Clinic in Hamilton together. The Stipley Clinic offers services for those addicted to drugs. Lazar described it as an opiate management clinic where she was prescribed Suboxone. Sgt Zwolak’s surveillance observations on this date appear to be consistent with Lazar’s testimony that she and Mhlongo were seeking treatment for their addiction together.

63On December 12, 2023, the date of the search and arrest, at 8:51 a.m., Lazar made a spontaneous utterance to PC Huckerby: “I take Percocets”.³⁵ Lazar told PC Huckerby that she was prescribed Suboxone and showed the officer a pill bottle in her name, labelled, “(14) ACL-BUPRENORPH/NALOXON 8mg/2mg”.³⁶ Lazar testified that after her arrest, when she was taken to the police station, she was going through withdrawals and was getting sick. She attributed this to being off the Suboxone so the amount the officer gave her was not enough to abate her withdrawal symptoms. Lazar testified that, as a result, she was transported by EMS to the hospital where she remained for two to three days. This evidence was left unchallenged by the Crown. It provides some confirmation for Lazar’s claim that in December 2023 her addiction was significant.

64The police witnesses testified about surveillance they conducted in November and December 2023, which included observations of Lazar having short meetings with individuals. A close review of the surveillance evidence reveals that the dates on which police made observations of Lazar were November 7, 15, 16, 21, 23, and December 7. Lazar testified that, but for one short meeting with a friend, during all the other short interactions she had with individuals she was purchasing pills from them, not selling drugs.

65Lazar testified that her regular drug dealer was Tracy who lived at 144 Beach Road and that she attended at 144 Beach Road daily to buy opiates including Percocet pills. Lazar said that Tracy did not always have enough pills to sell her which necessitated buying more pills from other dealers due to the extent of her addiction at the time. Lazar confirmed that she sometimes goes by the name, “Lilly” and that she owed Tracy money for pills that she had obtained from her. The debt lists depicted in the photograph filed as Exhibit 10 contain the name “Lily” with amounts beside the name. There are multiple other names on the debt lists with amounts beside them and in some cases, what the debt was for. The police found pills when the executed the search warrant at 144 Beach Road. Det Cst Pacheco confirmed that one of the individuals charged as a result of the execution of the warrant at 144 Beach Road was named “Tracy”.

66The debt lists and pills found at the Beach Road address provide some confirmatory evidence for Lazar’s testimony that her attendances there were to purchase pills. It is reasonable to infer that the name “Lily” on the debt lists referred to Lazar who was seen attending at 144 Beach Road for short visits on November 15, 16 and 21.

67Lazar was asked about surveillance on November 23. Sgt Zwolak saw Lazar helping an unknown female at the Walmart at Ottawa and Barton Streets load groceries into the trunk of the Mercedes and drive to 144 Beach Road where the groceries were unloaded. Lazar explained that she and Tracy had a good relationship. Sometimes Lazar would call Tracy to ask if she was home and Tracy would tell her that she was doing groceries. Tracy did not have a vehicle. Lazar would pick Tracy up, drive her home and help her unload her groceries hoping that Tracy would “hook me up with a little bit more…pills”. Lazar testified that Det Cst Pacheco’s observations from November 16, when he saw her and an older female outside 144 Beach Road carrying reusable bags into the residence was probably the same thing, her helping Tracy with groceries. Lazar’s evidence regarding these surveillance observations was plausible.

68In addition to the observations police made of Lazar’s attendances at 144 Beach Road, she had short meetings with other individuals. Lazar testified that, aside from the meeting on November 21 with a female friend, she was buying pills on each of these occasions. Although Lazar’s evidence on this issue was not without flaws, I cannot say that in the totality of the circumstances it is implausible.

69For instance, she testified that the male who got into the passenger seat of the Mercedes near Gage Park for a short meeting on November 7 and then left on a bike was an individual whose name she could not remember. She claimed that she was introduced to him through Tracy’s son, Chris. Lazar also could not recall how many Percocet pills she bought from this male or how much she paid.

70On November 16, Lazar left the Residence in the Mercedes and crossed the street into the No Frills parking lot. She backed in beside a waiting blue Ford Bronco and exited the Mercedes. She went into the passenger side of the Bronco and, three minutes later, got out and went back into the Mercedes and left. The Bronco left the parking lot a minute later. On November 23, police again observed Lazar to have a short meeting with someone in a blue Ford Bronco in the parking lot of a Shoppers Drug Mart at Upper Wellington Street and Mohawk Road East. Lazar parked her Mercedes next to the awaiting Bronco, got out of her vehicle and entered the passenger seat of the Bronco. She exited the Bronco about five minutes later and both vehicles left the parking lot. Again, for both the November 16 and 23 meetings, Lazar could not recall the name of the driver of the Bronco and said that friends would sometimes tell her where to meet someone who had pills. She testified that she didn’t even know the individuals she was buying from and communicated with them through friends.

71On December 7, Det Cst Lentz observed the Mercedes pull into the Shoppers Drug Mart parking lot at Upper Wellington Street and Mohawk Road East and park against the fence line of the east side of the lot. Lazar exited the Mercedes and entered the passenger seat of a red pickup truck. Det Cst Lentz observed through the windshield an interaction between Lazar and the white male driver of the pickup who had a beard. About three minutes later, Lazar exited the pickup, returned to the Mercedes, and left the lot. The driver of the pickup truck left the lot slowly. Det Cst Lentz saw him gesturing toward his lap and looking down. However, the officer could not see any objects in the man’s lap. Again, Lazar testified that she was buying drugs on this occasion but did not provide further details.

72Det Cst Goch made observations of two short meetings involving the Mercedes on November 23, one between 5:07 p.m. and 5:09 p.m. and the other between 7:12 p.m. and 7:15 p.m. Both meetings involved individuals walking up to the Mercedes and then walking away, after which the Mercedes drives away. However, Goch did not know who was driving the Mercedes on either occasion and Lazar was not asked about these meetings.

73Lazar testified that the short meeting she had with a female on November 21 in the area of 27 Essling Avenue in Hamilton was her friend, Helen Khamo, whom she met in high school. Lazar said this meeting was unrelated to drugs. She was not selling drugs to Helen or purchasing any drugs from her. Lazar said that she was delivering cigarettes to Helen on this occasion, and it was not uncommon for her to have short meetings with Helen or occasionally have a cigarette or a coffee with her.

74Although Lazar provided little details regarding the short meetings she had with individuals on the various dates of surveillance, given the other evidence that exists regarding her drug addiction, I found Lazar’s evidence that she met with these individuals to purchase drugs, not to sell drugs, to be plausible.

75The surveillance evidence regarding Mhlongo is negligible. The observations of Mhlongo at the golf course on November 3 do not support an inference of drug trafficking, nor do the observations of Mhlongo on December 5, 6 and 7, when he was seen at various locations such as Fit4Less, a McDonald’s restaurant and a Service Ontario. On December 7, Det Cst Lentz testified that he observed Mhlongo and an unknown white male enter into the Mercedes coming out of a Fit4Less. The police followed the Mercedes. Lentz then said, “after they stopped briefly at 318 Montmorency, they're there for approximately one minute and then left at 1:34 p.m.” No evidence was led about whether Mhlongo or the other male exited the Mercedes and attended for a short visit at this address, nor is there any evidence about the residents of the home. The surveillance evidence does not assist the Crown with its case against Mhlongo.

76Crown counsel cross-examined Lazar extensively regarding her claim that, by October 2023 and onward, she was using between 50 to 100 pills a day. Crown counsel suggested that trafficking in drugs was the only way she would be able to support her drug habit and be in possession of the cash the police found in the Gucci bag. Cross-examination on these issues included an assessment of Lazar’s expenses and her income from tips she received waitressing and bartending and a child tax credit.

77Crown counsel pointed out that when Mhlongo returned to the Residence in October 2023, he was not working. The Crown argued that Lazar’s evidence simply did not add up. Without engaging in a detailed review of the specific values that Lazar provided for various expenses and income from tips, having reviewed this evidence in its totality, cross-examination in this area did not serve to diminish Lazar’s testimonial credibility or the reliability of her evidence. She gave evidence that she had savings, kept some money on hand in cash from tips she had earned, and owed money for some of the pills she had received, as evidenced by the entries on the debt lists from 144 Beach Road. Furthermore, Lazar’s testimony was that her use of between 50 to 100 pills a day was from October 2023 onward, when she characterized her drug addiction as “the worst it’s been”. October 2023 was only about a month and a half before police executed the warrant at the Residence. It is not inconceivable that Lazar would be able to sustain her drug habit with savings, cash she had earned from tips, and by going into debt with her drug dealers.

78Lazar testified that she and Mhlongo rented the Residence from her uncle in or around May 2023, approximately seven months before the police executed the search warrant. Lazar gave evidence that the previous tenants of the Residence “moved out fairly abruptly or immediately” which is why the unit became available. I wish to note that Crown counsel did not object to this evidence being led by the defence, nor did they ask me to disregard it as inadmissible hearsay. However, I have chosen to disregard Lazar’s testimony regarding her understanding of the abrupt departure of the previous tenants. No admissible evidence was led on this issue.

79In any event, I accept Lazar’s evidence that, in May 2023, when they moved in, “a bunch of stuff” had been left in the garage, including furniture, tires and some boxes. She testified that the garage “was like a storage unit” to which she added her own things including her own set of tires, more boxes and kitchen items. The entry video, Exhibit 1 on the trial, provides support for Lazar’s characterization of the state of the garage. Lazar testified that she was unphased by the items left in the garage because she and Mhlongo considered the Residence to be a temporary abode until they found another place to live.

80Lazar’s testimony that the pedestal was one of the items of furniture that was already in the garage, and was never in the home itself, was not challenged, and as I have stated, I found Lazar to be a credible witness whose evidence on certain issues was supported by other independent evidence or admitted facts. I accept her evidence that she never closely examined or paid attention to the pedestal because she viewed it as a random piece of furniture that was left behind. I accept her denial of knowledge of the contents of the pedestal.

81I also note the absence of forensic evidence, such as fingerprints or DNA, tying Lazar or Mhlongo to the pedestal or the drugs, firearms, and other items in the pedestal. There is an absence of surveillance evidence outside the Residence. For instance, the police did not witness persons attending there for short periods of time which would be consistent with drugs being trafficked from the Residence. Such evidence is not required to convict but the absence of this type of evidence, considered in conjunction with the other evidence in the case, prevents me from ruling out the other reasonable inferences that have been advanced by Lazar and Mhlongo that are inconsistent with guilt.

82Crown counsel, in closing submissions, did not place reliance on the eight cell phones found in the Residence as an indicia of drug trafficking. Indeed, PC Tweedle who located and seized the phones did not view them as having much, if any, relevance. Regarding five of the phones, he said, “at the time, it was just five dead phones in a drawer”. Lazar gave evidence about the other three phones that are seen on the kitchen counter in the entry video. She said two of them were broken. The other one had been given to her and she was going to sell it. She also said that none of these three phones had active lines. Lazar’s testimony on this point was left unchallenged. The Crown did not lead evidence that any of the eight phones had active lines, nor did the Crown lead any forensic evidence from the phones which would support the Crown’s theory that Lazar and Mhlongo were trafficking in controlled substances.

83Lazar gave evidence that she would also occasionally use cocaine as a party drug. The Crown concedes that the discovery of the green reusable bag in the Residence that contained evidence of cocaine drug use, and cards and documents with Lazar’s name on them, is consistent with Lazar’s testimony that she would occasionally use cocaine. The Crown did not rely on the contents of the green reusable bag as a piece of circumstantial evidence that assisted in establishing that Lazar and Mhlongo had knowledge of the contents of the pedestal. Lazar took issue with the police testimony that the green bag was on the kitchen table when the police entered the Residence. Given the position of the Crown in respect of the contents of the green bag, it is unnecessary to resolve this issue. However, I note that the entry video showing the green bag on the kitchen table also shows a door of a kitchen cupboard open. Lazar testified that the green bag was in this kitchen cupboard when the police entered the Residence.

84I will now address the Crown’s reliance on the magnets as a piece of circumstantial evidence supporting the inference that Lazar and Mhlongo knew about the illegal contents of the pedestal. The Crown referred to the magnets as “the keys” to open the pedestal. Both the black and silver magnets were made exhibits on the trial. I inspected them. They are large magnets, not magnets which are akin to fridge magnets. Both the black and the silver magnets opened the pedestal by the means demonstrated in Court and in the demonstration video filed as Exhibit 7. A strong inference can be drawn that the magnets were in the Residence because they were used by the occupants to access the pedestal.

85However, the totality of the evidence, including the evidence about the magnets, does not lead me to find that the only reasonable inference is that Lazar and Mhlongo knew about the illegal items in the pedestal. First, I reject the Crown’s characterization of the magnets as “the keys” to open the pedestal. There was nothing unique about the magnets that established a connection between them and the pedestal. When PC Tweedle tasked Det Cst Goch with opening the pedestal, Goch opened it “pretty much right away” by “using a hammer to hit the bottom side of the lid”. The magnets were not the exclusive means by which the pedestal could be opened.

86Lazar gave inconsistent evidence about the magnets. In examination-in-chief, she testified that both the silver and black magnets were on the fridge before the police entered the home on December 12. She said these magnets were on the fridge when they moved into the Residence and that she never used them for anything other than putting things on the fridge. In cross-examination, when Crown counsel showed her a picture of the silver magnets on the fridge and asked her if she recognized them, Lazar replied, “I don't remember the silver one. I remember mostly black ones and red ones. I don’t, I don't have a clear vision of the silver one”. Lazar went on to say that it was the circular and rectangular black magnets that she used on the fridge.

87This inconsistency between her in-chief testimony (both the black and silver magnets were in the Residence when they moved in and were on the fridge before police entered on December 12) and her testimony in cross-examination (not remembering the silver magnets on the fridge) did not cause me to doubt the credibility of Lazar’s testimony that she did not use the magnets to access the pedestal. On her evidence, the magnets, both the black ones and the silver ones, were not significant to her.

88The Crown places significance on the fact that, at 11:30 a.m., Sgt Zwolak located the black magnets on the stair landing, directly across the hallway from the garage. In essence, the Crown argues that the proximity of the black magnets to the garage permits an inference to be drawn that they were used to access the pedestal. I place little significance on the fact that the black magnets were on the stair landing because I cannot find as a fact that they were on the landing when the police first entered the Residence. I am unable to make this finding of fact because the police evidence portrays a somewhat lackadaisical approach toward their duty to accurately document where, and when they found items of potential significance in the Residence.

89For instance, Sgt Zwolak could not recall whether he alerted anyone when he found the cell phone on the pillow beside the child, he did not document that he put this phone in the area of the stairs before leaving for Mohawk Road East , he was not exactly sure where at the top of the stairs he put this phone, and he was only able to say that “to the best of (his) knowledge” it was in that same location at the top of the stairs when he returned from Mohawk Road East.

90Sgt Zwolak made no notation of the black magnets being on the stair landing when he first entered the Residence at 8:38 a.m. He was away from the Residence dealing with the Mohawk Road East search warrant until 10:25 a.m. While he was away from the Residence, other officers were searching the Residence and Zwolak acknowledged, when cross-examined by Lazar’s counsel, that he did not know whether the black magnets had been touched, moved or manipulated at all by any of the other officers who were in the Residence before he located and seized them at 11:30 a.m.

91There are other troubling examples of the police taking a less than diligent approach in documenting the location in which items were found in the Residence. Det Cst Goch testified that the purpose of the entry video was to record where items were before officers began their search of the Residence. There is no satisfactory explanation for the fact that the entry video, which was made between 9:01 and 9:10 a.m., shows three cell phones on the kitchen counter when PC Tweedle testified that all the phones were found in drawers at 11:15 a.m. PC Tweedle’s attempt to suggest that his notation in his notes “Phones on counter x3” should be accepted as accurate notwithstanding that his will say and the Non-Drug Exhibit Log both say that he found three phones in a kitchen drawer was unconvincing.

92Sgt Zwolak was only able to say that he located and seized the silver magnets “in the area of the refrigerator”. He did not have a note that they were on the refrigerator and could not recall whether they were. Sgt Zwolak was unable to explain why no notes exist about him turning the silver magnets over to Det Cst Goch, and Goch said he does not believe there is any log or notation in his notebook or will say about where, how, and when Zwolak located the silver magnets.

93For the foregoing reasons, I place little significance on the fact that PC Zwolak located and seized the black magnets on the stair landing at 11:30 a.m. For her part, Lazar testified that she did not see the black magnets on the stair landing before police entered the Residence on December 12. On the totality of the evidence, I cannot find as a fact that they were.

94There is evidence that individuals other than Lazar and Mhlongo had access to the garage and the Residence after the couple moved in. For instance, Lazar permitted a cousin to access the garage when she was not home to store tires. Lazar testified that, when her cousin came to collect the tires maybe a week later, she again allowed him to have access to the garage by leaving the door open when she was not home. According to Lazar, she did not have concerns about leaving the garage door open because there was, “nothing really in my garage for me to be concerned that my garage was open”. I found Lazar to be forthright when she agreed with Crown counsel’s suggestion that, at the time, she was not concerned that her cousin would leave dangerous items in her garage.

95Mhlongo’s counsel cross-examined Lazar about two male friends who stayed with her at the Residence when Mhlongo was in Newfoundland. One of these men stayed at the Residence for approximately two weeks and the other stayed at the home for about a week. Although no dates were provided, these short stays would have happened sometime between September 2023 and October 13, 2023, the date on which Mhlongo entered into the release order and returned to Hamilton.

96Lazar’s evidence about her cousin and the two individuals who stayed with her at the Residence for short periods of time when Mhlongo was in Newfoundland raises the prospect that Lazar and Mhlongo did not have exclusive access to and control of the garage throughout their entire tenancy at the Residence.

97I must consider whether there is a reasonable possibility that somebody else put the pedestal which contained the drugs, firearms and other evidence in the garage without Lazar and Mhlongo’s knowledge. I adopt the following passage from Justice Schreck’s decision in R. v. Knight, which applies equally to firearms:

The Crown relies heavily on the value of the drugs, pointing out that as a matter of common sense and human experience, it is unlikely that somebody would leave drugs of this value unattended or in the control of somebody who was unaware of their presence or value: Bains, at para. 157; R. v. Bryan, 2013 ONCA 97 (Ont. C.A.), at para. 11; R. v. Bonilla-Perez, 2016 ONCA 535 (Ont. C.A.), at para. 16. There is no doubt that the value of contraband can lead to an inference of knowledge in some circumstances. It is not, however, an inference that must be drawn in all cases, particularly where the contraband is well hidden. Ultimately, this is one piece of evidence which must be considered together with all of the other circumstances.³⁷

98A strong inference that Lazar and Mhlongo had knowledge of the contents of the pedestal can be drawn from the following pieces of circumstantial evidence considered cumulatively: (i) the significant value of the drugs in the pedestal; (ii) the fact that the firearms, magazines and ammunition in the pedestal are not the types of property that would be the subject of unknowing possession; (iii) Lazar and Mhlongo’s occupancy of the Residence; (iv) the presence of magnets in the Residence which could be used to open the pedestal; and (v) in relation to Lazar, her short meetings with various individuals which are consistent with drug transactions.

99However, I am unable to find that Lazar and Mhlongo’s knowledge of the drugs and firearms and other evidence in the pedestal is the only reasonable inference on the totality of the evidence. The following pieces of evidence, and the absence of certain pieces of evidence, have contributed to leaving me in a state of reasonable doubt on this issue: (i) in relation to Lazar, her testimony regarding short meetings the police observed being attributable to her purchase of pills. This testimony must be considered in conjunction with the evidence which supports the fact that she was dealing with a drug addiction, including her visit to the Stipley Clinic, her prescription for Suboxone, the withdrawal symptoms she experienced after her arrest, as well as the evidence of the debt lists with “Lily” on them at 144 Beach Road and the large quantity of pills the police seized at that address; (ii) Lazar’s evidence that the pedestal was already in the garage of the Residence when they moved in there in May of 2023, along with other items in the garage which she characterized as a storage area; (iii) the drugs and firearms were well hidden in the pedestal in the garage, not in a visible or common area of the Residence; (iv) Lazar’s evidence that others had access to the Residence, and in particular the garage, even after she and Mhlongo moved in; (v) the fact that the magnets were not the only means by which the pedestal could be opened; (vi) the absence of evidence that Lazar or Mhlongo’s fingerprints or DNA were found on the pedestal or any of the evidence found within it; (vii) the lack of evidence of other things in the Residence associated with drug trafficking, aside from the currency in the Gucci bag which I will deal with separately; (viii) in relation to Mhlongo, the lack of surveillance evidence consistent with his participation in drug trafficking, and (ix) in relation to Lazar, her denial of knowledge of the contents of the pedestal and denial that she participated in drug trafficking.

100Lazar admitted that the cash found in the Gucci bag was hers. Her evidence that this cash was derived from tips she earned and not from selling drugs has left me in a state of reasonable doubt on the proceeds of crime charge. In relation to Mhlongo, there is an absence of evidence that he had knowledge or control of the Gucci bag and the cash in it. For instance, no identification belonging to Mhlongo was found with the Gucci bag, nor was there any other evidence connecting him to the bag or the cash in it. The only other cash found in the Residence was two $20 bills in the pocket of a black jacket on the sofa in the living room which also contained a photo ID card for Mhlongo. I am unable to find beyond a reasonable doubt that this small quantity of cash makes out the proceeds of crime charge beyond a reasonable doubt.

Conclusion

101For the foregoing reasons, I found Lazar and Mhlongo not guilty of the following offences:

(i) possession of a loaded prohibited firearm, a Ruger EC9S: s. 95(2) Criminal Code;

(ii) possession of a firearm, a Polymer80 P4940 Glock Type, with readily accessible ammunition capable of being discharged in the firearm, without an authorization or licence to possess it in that place: s. 95(2) Criminal Code;

(iii) possession of cocaine for the purpose of trafficking: s. 5(2) CDSA;

(iv) possession of fentanyl for the purpose of trafficking: s. 5(2) CDSA; and

(v) possession of proceeds of crime not exceeding $5,000: s. 355(b) Criminal Code.

102My not guilty findings relating to the s. 95(2) Criminal Code offences result in not guilty findings on Mhlongo’s s. 117.01(1) Criminal Code charges of possessing firearms and a firearm device while bound by weapons prohibition orders and his s. 145(5)(a) Criminal Code charges of failure to comply with a release order.

Footnotes

1. 1At the invitation of the Crown, I dismissed counts 3, 9 and 10 on Information number 23-47107312 alleging possession of a silencer by both accused and two additional counts of failure to comply with a release order pertaining to Mhlongo that related to his alleged possession of a cell phone.
2. 2Agreed Statement of Fact, Exhibit 3, para. 2 and Tab 1.
3. 3Agreed Statement of Fact, Exhibit 3, paras. 29-30 and Tabs 5-7.
4. 4Agreed Statement of Fact, Exhibit 3, para. 3.
5. 5Agreed Statement of Fact, Exhibit 3, para. 8.
6. 6The entry video is Exhibit 1 on the trial.
7. 7Agreed Statement of Fact, Exhibit 3, paras. 17 - 21.
8. 8Agreed Statement of Fact, Exhibit 3, paras. 22 and 24.
9. 9Agreed Statement of Fact, Exhibit 3, para. 23.
10. 10Agreed Statement of Fact, Exhibit 3, para. 26.
11. 11These same phones are listed as items 12, 13, and 14 on an updated version of the Non-Drug Exhibit Log which was filed as Exhibit 8 on the trial.
12. 12The Crown Photo Book (Exhibit 2) has pictures of the Gucci bag and the stack of bills at Tab 1, pages 16 and 17.
13. 13Crown Photo Book (Exhibit 2), Tab 1, pages 19-21.
14. 14The photographs at pages 26 and 27 at Tab 1 of the Crown Photo Book (Exhibit 2) also depict black magnets. The black magnets are Exhibit 4 on the trial.
15. 15The cluster of silver magnets are Exhibit 6 on the trial.
16. 16R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), at para. 36; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.), at para. 28.
17. 17R. v. Villaroman, supra, at para. 30.
18. 18R. v. Villaroman, supra, at para. 35.
19. 19R. v. Villaroman, supra, at para. 37.
20. 20R. v. Villaroman, supra, at para. 37.
21. 21R. v. Villaroman, supra, at para. 37, citing R. v. Bagshaw, [1972] S.C.R. 2 (S.C.C.), at p. 8.
22. 22R. v. Villaroman, supra, at para. 38.
23. 23R. v. Villaroman, supra, at para. 42, citing R. v. Dipnarine, 2014 ABCA 328, at paras. 22 and 24-25.
24. 24R. v. Villaroman, supra, at para. 42.
25. 25R. v. Villaroman, supra, at para. 42.
26. 26R. v. Pham (2005), 203 C.C.C. (3d) 326, 36 C.R. (6th) 200 (Ont. C.A.), at para. 14; affirmed 2006 SCC 26, [2006] 1 S.C.R. 940 (S.C.C.).
27. 27R. v. Morelli, 2010 SCC 8, at para. 17.
28. 28R. v. Pham, supra, at para. 15.
29. 29Ibid, at para. 16.
30. 30R. v. Lights, 2020 ONCA 128, at para. 50.
31. 31R. v. Bains, 2015 ONCA 677, at para. 157.
32. 32Ibid, at para. 157.
33. 33R. v. Balasuntharam, [1999] O.J. No. 4861 (Ont. C.A.), at para. 2.
34. 34Ibid, at para. 2.
35. 35Agreed Statement of Fact, Exhibit 3, para. 11.
36. 36Agreed Statement of Fact, Exhibit 3, para. 12.
37. 37R. v. Knight, 2019 ONSC 2443, at para. 27.