Court File and Parties

Court File No.: Hamilton 14-9326 Date: 2017-06-14 Ontario Court of Justice

Between: Her Majesty the Queen — and — Rusheed Martine Dudhi

Before: Justice George S. Gage

Heard on: March 20-21, and April 20, 2017

Counsel:

• N. White for the Crown
• T. David for the accused

Reasons for Charter Ruling and Judgement

GAGE J.:

Introduction

[1] On September 16, 2014 Rusheed Dudhi was driving his BMW motor vehicle on the Red Hill Expressway headed toward the Mud Street exit when his vehicle attracted the attention of Constable James Clayton of the Hamilton Police Service. Clayton was on plain clothes duty operating an unmarked cruiser. The vehicle operated by Dudhi was similar to a vehicle that Clayton was looking for in connection with a separate investigation.

[2] When Clayton ran the plate identifiers he determined that the Dudhi vehicle was not the one he was looking for – nor did the identifiable characteristics of the driver match the description of the person Clayton was looking for. By this time both Clayton and Dudhi in their respective vehicles had entered the parking lot of the shopping center located at the intersection of Winterberry Drive and Paramount Drive. Nevertheless, it appeared to Clayton that Dudhi was observing him in a manner that suggested he had more than a casual interest. Clayton's interest was tweaked. He decided to sit and watch for a while.

[3] By way of radio communication from fellow officer Oosterhoff, Clayton learned that the registered owner of the vehicle he was watching was subject to bail conditions. He saw Dudhi get out of his car and use a cell phone. Clayton had been advised by Oosterhoff that one of the bail conditions was a prohibition on the use of cell phones. Clayton made other observations that caused him to suspect that a drug transaction of some sort involving Dudhi might be underway.

[4] Clayton decided that if the person he was observing was the registered owner then that person could be arrested on the basis of a breach of recognizance. Clayton called for back-up which did not arrive until after Dudhi had driven out of and away from the parking lot. A form of chase ensued that culminated in uniformed officers stopping the Dudhi vehicle in lower east Hamilton.

[5] As it happens, the cell phone condition had been amended months prior to September 16. The amendment allowed for the possession and use of one cell phone the particulars of which were to be provided to a certain officer of the Hamilton Police Service. Clayton did not know about the exception until after he had arranged to stop the Dudhi vehicle and arrest Dudhi for breach of recognizance.

[6] Coincidental with Dudhi's arrest a second cell phone was observed. A search of the interior of the vehicle revealed a quantity of cocaine hidden in a compartment adjacent to the fold down centre armrest of the rear seat.

[7] The report of an expert was admitted on consent. The report confirms the virtually self-evident proposition that the quantity of cocaine found in the vehicle (497.32 grams/street value of $28-35,000) and the manner in which it was packaged is consistent with possession for the purpose of trafficking and inconsistent with possession for personal use.

[8] Dudhi applies under section 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter "the Charter") to exclude the evidence discovered as a result of the search of his vehicle on the basis that his arrest and the subsequent search breached his right to be free from arbitrary arrest detention and his right to be free from unreasonable search and seizure.

[9] He maintains that the police lacked reasonable and probable grounds to detain and arrest him. He suggests that the arrest was tainted by the presence of racial profiling. He maintains that the scope of the search of the vehicle exceeded the permissible bounds of a search incident to arrest.

[10] On April 20 I provided the parties with an oral ruling (with written reasons to follow) that while the failure to confirm and clarify the actual terms, including exceptions, of the bail condition, on the basis of which the officer founded his arrest for an alleged breach, represented a breach of section 9, I was not persuaded, in the circumstances here prevailing, that there was a breach of section 8 or that the evidence secured as a result of the search of the interior of the vehicle should be excluded. It was agreed at the outset that the trial and Charter application would proceed on a blended basis and that the evidence would apply to both. Immediately below are the written reasons for the Charter ruling.

[11] After the oral ruling on the Charter application the accused elected to call evidence. Following the reasons for the Charter ruling herein is a summary of the defence evidence as well as my reasons for the ultimate disposition of the prosecution.

The Evidence on the Charter

[12] The witnesses called in connection with the Charter application were: Constable James Clayton; Constable Michael O'Hagan; Constable Robert Monteforte; Constable Jeffrey Scott; and Constable Darryl Oosterhoff.

[13] The accused/applicant called no evidence on the Charter application.

[14] From the evidence I make the following findings of fact relevant to the Charter application:

• On September 16, 2014 Clayton, Oosterhoff and O'Hagan were involved in undercover surveillance of a target other than Rusheed Dudhi;

• One of the vehicles they were looking for in connection with that investigation was a BMW motor vehicle similar to the one that Dudhi was driving;

• The target of their investigation was not a black male;

• Clayton first observed the BMW operated by Dudhi on the Lincoln Alexander Parkway near the Mud Street exit;

• Clayton followed the BMW off the Mud Street ramp and on to Winterberry. As he was driving, Clayton was in communication with Oosterhoff. He asked Oosterhoff to run the plates. Before Oosterhoff was able to reply, Clayton had determined that the driver was a black male and not the target they were looking for. He says to Oosterhoff "Disregard-it's the wrong guy here". By this time the BMW had pulled into or was in the process of entering a commercial mall parking area;

• Clayton followed the BMW in and parked in an isolated location. As he sat in his parked and unmarked vehicle Clayton asked Oosterhoff if he now had the plate particulars. At about the same time Clayton observed that the BMW drove by the front of his vehicle and the driver took a hard look at him. Clayton says: "he was mean mugging me hard so I am going to pay attention to him". Clayton describes the driver as a middle aged black guy;

• Clayton learns from Oosterhoff that the date of birth of the registered owner is 1988, and that the registered owner is subject to bail conditions that include a term that he is not to be in possession of a cell phone. At the same time Oosterhoff tells Clayton that there are more conditions on file but the person in records will need to look at the file to get them;

• Clayton also sees the driver exit his vehicle and walk around at which point he is able to better appreciate the age of the driver which he now believes is consistent with the age of the registered owner;

• Clayton observes that the male under observation is talking and texting on a cell phone. At this point Clayton determines that he has grounds to make an arrest for fail to comply with terms of release. Clayton instructs Oosterhoff to come over to assist with an arrest;

• At that point Oosterhoff hangs up on the records clerk and drives toward Clayton's location. On the way there Clayton asks if there are further descriptors for the registered owner – Oosterhoff tells him he hung up on the clerk and asks Clayton if he wants him to phone back or if he wants him to ask O'Hagan to get the information – Clayton does not respond;

• In the meantime Clayton observes the black male enter a White Mercedes SUV and leave the parking lot for a short time and thereafter return on foot. Clayton suspects that there has been a drug transaction. The black male stares at Clayton and then re-enters the BMW and drives away;

• Clayton and others follow the BMW which appears to be attempting to evade them. Clayton follows the BMW to Stonechurch Road and observes it enter the Lincoln Alexander Parkway (LAP) going westbound at which time he loses sight of it.

• O'Hagan was at a police station when Clayton made his first observations. He got into an unmarked car and drove toward Clayton's location at the commercial mall. O'Hagan sighted the BMW westbound on the LAP and followed it when the driver exited at Dartnell Road. The BMW went south on the Dartnell exit to Stonechurch then east on Stonechurch to a point where it executed a U-Turn to go west on Stonechurch to Dartnell and then north on Dartnell to the LAP/Red Hill Expressway entrance for eastbound traffic on the LAP. O'Hagan followed and testified that the driver of the BMW stared at him as he made the U-Turn;

• Thereafter the BMW drove east and north on the LAP/Red Hill Expressway to Greenaway where it exited going east until stopped at Albright Road and Montmorency;

• While the pursuit is ongoing Oosterhoff asks Clayton if this is the target of their ongoing investigation to which Clayton replies that the person they are following is "Another brown guy who is a drug dealer";

• A take down by uniformed officers in marked cruisers is arranged. The BMW is stopped by uniformed officers in marked cruisers boxing the BMW in at an intersection at 6:53 pm;

• Monteforte approached the vehicle. He observed that Dudhi was on the phone;

• Clayton is the first officer to attend at the driver side of the vehicle. He opens the door and speaks to the driver and asks him if he is Rusheed Dudhi. When Dudhi responds in the affirmative Clayton removes Dudhi from the vehicle and advises him he is under arrest for failing to comply with the conditions of his release.

• In the course of the arrest of Dudhi, both Clayton and O'Hagan observe that there is a second cell phone in plain view in the center console of the front seat of Dudhi's vehicle. Dudhi immediately indicates that he has a variance and produces bail papers. The original recognizance was issued on January 17, 2011. The variation was authorized on June 1, 2012. The variation converted house arrest to curfew conditions and allowed Dudhi to possess one cell phone the number of which was to be provided to Detective Read of the Hamilton Police Service.

• However, since the officers have now observed two cell phones the arrest is continued, a search of the vehicle is commenced, and further investigation is not pursued to determine if one of the cell phones is the one cell phone authorized in the amended exception;

• Rusheed Dudhi was subjected to a search of his person as incidental to arrest which search revealed nothing untoward;

• While the arrest was ongoing, a female who identified herself as Dudhi's common law partner arrived at the scene. She attempted to have a discussion with Clayton. She wanted to drive the vehicle away;

• Officers O'Hagan, Monteforte and Oosterhoff commenced a search, incident to arrest, of the BMW motor vehicle. The officers restricted their search to the interior of the vehicle and to locations within an arm's length of the driver based on the premise that other cell phones might be found within that perimeter;

• Very shortly after the search of the vehicle was commenced Oosterhoff located a quantity of cocaine located within a concealed compartment situated in the receded well of the rear seat fold down armrest. When Oosterhoff pulled down the arm rest the plastic piece covering of the recessed well felt loose. The plastic was easily removed. Removal of the plastic piece revealed seat foam and on the left side an aluminum compartment with what appears to be a finger hole located in the middle (See Exhibit 2, photos F-K). The cocaine was in plastic bags located inside the aluminum compartment;

• As soon as the cocaine was discovered the search was terminated.

The Law

Standard of Proof and Credibility

[15] It is a fundamental feature of our criminal law that the accused is presumed innocent until proven guilty.

[16] In order to secure a finding of guilt the Crown must satisfy the Court that the allegations are proven "beyond a reasonable doubt". The burden of proof rests with the Crown throughout the trial. It never shifts to the accused.

[17] A reasonable doubt is based on reason and common sense and is logically connected to the evidence or absence of evidence. More is required than proof that the accused is probably guilty. On a spectrum of standards of proof "beyond a reasonable doubt" falls closer to absolute certainty than to proof on a balance of probabilities.

[18] The deliberation of the question of whether guilt has been proven in a trial where competing versions of the events in issue have been given must not devolve into a process of simply deciding which version is preferred or which is perceived as more credible. It is not a credibility contest. The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused.

[19] Although it is not necessary that the analysis be undertaken in the precise order in which it appears below, the Supreme Court of Canada has recommended the following decision making process in trials where the evidence includes competing versions of events:

• Do I believe the exculpatory evidence of the accused? If the answer is yes the analysis is at an end and a finding of not guilty is the result.

• Even if I do not affirmatively believe the account given by the accused, does his or her evidence cause me to entertain a reasonable doubt about his guilt? If yes then the verdict must be not guilty.

• Even if the evidence of the accused is not the cause of a reasonable doubt, is the whole of the evidence sufficient to establish the guilt of the accused beyond a reasonable doubt? If the answer is yes then the verdict is guilty.

[20] There are many factors that go into the assessment of credibility. A trial judge must consider, among other things, a witness' power of observation, his or her memory, his or her age at the time of the events in question, the passage of time, any bias or partiality, interest in the outcome, and demeanour. Of importance is the inherent probability or reasonableness of a particular version of the facts, against the backdrop of uncontroverted facts.

Possession

[21] Pursuant to section 2 of the Controlled Drugs and Substances Act the definition of "possession" found in section 4 subsection (3) of the Criminal Code of Canada applies to prosecutions under the CDSA.

[22] Subsection 4(3) of the Code reads as follows:

(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.

[23] In order to prove possession, the Crown must prove two distinct elements, knowledge and control.

[24] In crimes of unlawful possession it is not necessary for the prosecution to prove the required knowledge by direct evidence. It can be inferred from the surrounding circumstances.

Charter Issues

[25] Section 8 of the Charter provides that "everyone has the right to be secure from unreasonable search or seizure."

[26] Section 9 of the Charter provides that "everyone has the right not to be arbitrarily detained or imprisoned."

[27] Section 495 of the Criminal Code allows a police officer to arrest, without warrant, a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.

[28] Section 145(3) of the Criminal Code makes it an offence to fail to comply with a condition of release. It is a hybrid offence and therefore an indictable offence until such time as the Crown elects otherwise.

[29] The leading authority on the meaning of reasonable grounds is R v Storrey. In that decision Justice Cory emphasized the critical importance of the reasonable and probable grounds requirement and the balancing of the right to liberty and the need for society to be protected from crime.

[30] The appropriate balance is achieved where the arresting officer subjectively believes in good faith that his grounds rise to the level of credibly based probability and that those grounds are objectively discernable in the sense that a reasonable person standing in the shoes of the officer would have believed that reasonable grounds existed.

[31] The leading authority on the meaning and scope of a "search incident to arrest" is R v Caslake in which decision the Supreme Court of Canada ruled that:

• The search must be for a valid objective in pursuit of the ends of criminal justice such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused;

• The search must be conducted in a reasonable manner that is proportionate to the objectives sought;

• The three main purposes of a search incident to arrest are: 1) ensuring the safety of the police and the public; 2) the protection of evidence from destruction at the hands of the arrestee or others; or, 3) the discovery of evidence which can be used at the arrestee's trial;

• The standard of justification for search is "reasonable basis" which is a lesser standard that reasonable and probable grounds but it must withstand scrutiny on the objective basis of reasonableness;

• Whether a search of an automobile will be considered reasonable will depend on a number of factors including the basis for the arrest, the location of the motor vehicle in relation to the place of arrest and other relevant circumstances;

Analysis of Charter Application

Arbitrary Detention and Arrest

[32] A part of the submissions made by the Crown focused on the authority of officers to stop a vehicle pursuant to the Highway Traffic Act to check for ownership, insurance and driver sobriety. Counsel also cited jurisprudential support for the proposition that dual purpose stops are not constitutionally unacceptable. While the officers in this instance could have stopped the Dudhi vehicle under the authority of the Highway Traffic Act the fact is that none of them purported to do so. The sole basis for the stop cited by the officers was an arrest for failing to comply with terms of release prohibiting the use of cell phones. The fact that they could have stopped for other purposes does not inform the legitimacy of the stop although it can, and in this case does, impact the Grant analysis concerning the admissibility of the evidence of the search.

[33] The comment "Another brown guy who is a drug dealer" does not reflect well on Officer Clayton. His explanation for why he used that expression was not convincing. Nevertheless the comment was made after he had information on the basis of which he legitimately believed he had grounds to arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by Dudhi's behaviour at the mall. In other words, although there is a suggestion of racialized thinking inherent in the remark, it did not inspire any precipitous or improper action.

[34] The situation that presented itself to Clayton was that a person who seemed to be concerned about Clayton's presence in commercial mall parking lot was also a person who was subject to conditions of release on drug charges and Clayton was advised that the release conditions included a prohibition on cell phone use or possession.

[35] When he observed Dudhi using a cell phone he believed that he had grounds to arrest for failure to comply. Importantly however, he was also advised that there was more information in the file and potentially more conditions but that some time would be needed to access the file. Oosterhoff asked if Clayton wanted him to call back the records clerk or have O'Hagan look into it. There is no response. O'Hagan and Oosterhoff are both privy to the radio transmissions in this regard and neither take any steps to supplement the information that they have.

[36] The sole basis for the stop and arrest was the use of a single cell phone. Clayton, Oosterhoff and O'Hagan are all experienced police officers who are aware that conditions of release – particularly conditions in place over an extended period of time – may be amended or removed. They were all aware that there was more information in the file. No steps were taken to learn about the other file information. Doing so was not complicated. There is no indication that it would have taken much time. There was no urgency that prevented due diligence in confirming the content of the complete conditions including any exceptions or amendments.

[37] In these circumstances I find that proceeding with an arrest on the basis of information that all concerned knew was incomplete was both arbitrary and not objectively reasonable and the stop and arrest was therefore a breach of Dudhi's right under section 9 of the Charter to be free from arbitrary detention.

Section 24(2) Analysis

[38] The officers had information that on the surface justified an arrest. There was a no cell phone condition and Dudhi was directly observed using a cell phone. On the seriousness of police conduct continuum the failure to dig deeper that constitutes the breach in this case was not a deliberate effort to circumvent Charter rights. It falls closer to the less serious negligence or lack of due diligence end of the continuum.

[39] The seriousness of the breach is attenuated by the fact that the officers could have stopped Dudhi's vehicle for HTA purposes and even if they had learned of the exception they would have been justified in stopping to determine if the cell phone used by Dudhi was an cell phone in the sense that the particulars had been provided to Detective Read.

[40] The search of the vehicle was not commenced until after Dudhi was found in possession of two cell phones. If he had been in possession of only one cell phone and the cell phone in his possession was one that had been reported to Detective Read the detention at the side of the road would have been brief, he would have been released without charge and the vehicle could not have been searched.

[41] The expectation of privacy in a motor vehicle sits at a lower level than a residence.

[42] In summary, none of the Grant factors favours exclusion.

Scope of the Search

[43] Given the presence of two cell phones in the center console a search of the interior of the vehicle for the presence of other cell phones within the reach of the driver was justified.

[44] The parameters described by Oosterhoff and Monteforte do not offend the principles enunciated in Caslake. There was a legitimate basis to search for further evidence of the breach underpinning the arrest. Dudhi was stopped while operating the vehicle searched. It was the location in which the two cell phones were located. The search was confined to arm's length from the driver seat.

Defence Evidence

Anthony Reid

[45] Anthony Reid is the older brother of Rusheed Dudhi. He presently lives and works in Edmonton where he is employed by an insulation company. In 2012 he was living in the Hamilton area and selling cocaine. Lots of cocaine. He did not tell his brother that he was selling cocaine.

[46] In early 2012 he decided that he wanted to buy a vehicle. He had been using rental cars but they were too "hot". He wanted to switch things up. His credit was not good at the time so he asked his younger brother Rusheed to be the nominal purchaser. He picked out a BMW at Haldimand Motors. The purchase price was $20,000. Anthony gave Rusheed the money for the down payment. The balance was financed. Anthony gave Rusheed the money for the financing on a monthly basis. Although the vehicle was in Rusheed's name it was driven exclusively by Anthony. After he got the vehicle Anthony arranged to have the stash box in the rear seat arm rest cavity installed.

[47] Anthony used the vehicle until February or March of 2013 when he was arrested at the Kitchener Airport coming back from a vacation in the Dominica. He last used the vehicle before he left for his vacation.

[48] He was incarcerated from the date of his arrest until December of 2013 when he was released on strict bail conditions that included house arrest and an electronic monitoring ankle bracelet. As of the date he last used the BMW there was a half kilo of cocaine in the stash box – an ounce of hard and the rest soft.

[49] Anthony says did not tell his brother that there were drugs in the vehicle until after Rusheed had been arrested on these charges. From March of 2013 to September 2014 he made no attempt, either direct or indirect, to retrieve the drugs from the vehicle. After his arrest he arranged to have his girlfriend provide Rusheed with money for the financing payments. He knew that his brother was eventually using the vehicle as his own. He knew that his brother had children who could also be in the vehicle. He knew that his brother was on bail conditions for drug charges and therefore likely to attract scrutiny from the police. He did not tell his girlfriend that there were drugs in the vehicle. He was hoping to get the drugs for himself when his bail conditions lightened up. He did not tell his brother in 2013 and 2014 he was selfish and interested in selling drugs. He found God in 2015.

[50] In 2015 his own drug charges were stayed and he was released. He was interviewed by the police in 2015 concerning allegations against a police officer. He did not disclose to police at that time that the drugs involved in this prosecution were in fact his. They did not ask him about the drugs in this case. He did not make any form of admission to authorities that the drugs were his until he testified at the trial.

Rusheed Dudhi

[51] Rusheed Dudhi is 28 years old. He was 26 at the time of his arrest. At that time he was living with his sister and her husband at 100 Quigley Street. He has been involved in a relationship with Emily Richards for the last 7 years. She is a resident of Stoney Creek. Rusheed has a daughter by a previous relationship. Emily has a son by a previous relationship. They have three children together.

[52] Anthony Reid is his brother. In January of 2012 Anthony asked Rusheed to assist him in purchasing a vehicle by securing the financing. Anthony provided the $2000 down payment. The purchase price was around $16,000. The balance of the purchase was financed through First Ontario. Rusheed trusted his brother. He just wanted to help him because he knew he had bad credit. Rusheed knew that his brother had a past but he was not aware that he was dealing drugs at the time. Rusheed thought that Anthony had changed because Anthony was running a car rental business.

[53] Rusheed was on bail for drug charges in 2012. His conditions of bail were revised in June 2012 to loosen the terms of curfew, eliminate a weekly check in and allow for the use of one cell phone. In accord with the amended terms Rusheed secured a cell phone and provided the number to Detective Reid. This was the same cell phone that he was using at the time of the arrest in September 2014.

[54] In March 2013 Anthony was arrested for conspiracy and drug trafficking. Payments were made for a few months and then Rusheed told Anthony's fiancé that he would take over the payments and use the car. After that he used the car as his own.

[55] On September 16, 2014 Rusheed did some work for his sister up to about 1 in the afternoon. He then picked up his three year old daughter and eventually took her to her mother's place. He dropped her off there at around 5 or 5:15.

[56] At about that time he got a call from his friend Jamie. Jamie asked about purchasing two tickets for the "Monster Mash" Benefit. Rusheed was involved in the organization of the benefit. Jamie, whose last name may be Dupuis or Bond, (Rusheed is not sure of the last name) is a work associate who lived at that time in Mississauga. Jamie told Rusheed that he was in town. He asked Rusheed to meet him at the Montana restaurant on the east Mountain.

[57] Rusheed drove up there. Rusheed is not familiar with that part of town. He parked in the parking lot and then got out to look around for Jamie. He did not give anyone in the parking lot a "look". When he did not see Jamie he texted him.

[58] Eventually Jamie and his girlfriend Jessica showed up in a white Mercedes SUV. Rusheed got in the back seat so that they could drive over to the Royal Bank ATM located in the next mall or plaza over. Rusheed gave him two tickets and Jamie gave him $20. Jamie was going back to Mississauga from there so he drove Rusheed to Artfrank St. and Winterberry Drive and dropped him off. Rusheed then walked back to his car and drove out of the plaza intending to go home. He did not stare at anyone before he left.

[59] Due to his lack of familiarity with the area he took a wrong turn driving away from the mall and got on the LAP going west instead of the Red Hill Expressway which goes north to the lower City. He realized his error and got off at the first exit which is Dartnell Road. He drove to the intersection of Dartnell and Stonechurch where he turned left to go east and executed a U-Turn in the Splitsville Bowling lanes parking lot and then headed back west on Stonechurch to the Dartnell entrance to the Red Hill Expressway and proceeded north to Greenhill to go home. He did not stare at anyone on Stonechurch. He did not execute a U-Turn on Stonechurch.

[60] He was driving home when he was boxed in at Montmorency and Albright. He had been subjected to compliance checks before. He spoke to his spouse Emily and asked her to come down. He did not ask her to come down to take the car. He says that she had his bail papers.

[61] He was shocked by the presence of the other phone. It is not his phone. It is his wife's old phone. It is not connected to a network. It was used by his daughter to play games. He had not noticed it in the console.

[62] Rusheed was not aware of either the secret compartment or the drugs. His brother had not told him about the compartment or the drugs.

[63] Rusheed had used the vehicle as his own for at least a year prior to his arrest. During that time he had cleaned the vehicle and he had taken out and put in the child seat on many occasions. He never noticed anything unusual about the back seat.

Analysis

[64] The analysis begins with an examination of the evidence of Rusheed Dudhi and his brother Anthony Reid. If I credit their evidence then Mr. Dudhi does not possess the knowledge necessary to ground a conviction for possession.

[65] Mr. Dudhi is likewise entitled to an acquittal if his evidence or his evidence in combination with his brother's evidence is sufficient to raise a reasonable doubt about whether Dudhi knew that the drugs seized were in his vehicle.

[66] I reject the evidence of Anthony Reid for the following reasons:

• I do not believe that he would go off on a vacation and leave $30,000 worth of cocaine sitting in his vehicle;

• Likewise, given the quantity and value of the drugs in issue, even if he had left the drugs in the vehicle while on vacation, I cannot believe that he would not have arranged to have the drugs retrieved from the vehicle at some time after his arrest in March of 2013 and prior to the discovery of the drugs by the police a year and a half later on September 16, 2014;

• Even if he had left the drugs in the vehicle while on vacation and even if I were to accept that he had somehow found it too difficult to arrange a retrieval personally or through his girlfriend or one of his associates I cannot believe that he would not have alerted his brother, who he loves, to the presence of the drugs in the vehicle particularly when he knew that his brother was using the vehicle, his brother had small children, and his brother was on bail for drug charges and therefore likely to attract scrutiny from the police.

[67] The fact that Anthony Reid, for almost two years, made no disclosure of his ownership of the drugs to anyone at any time under circumstances in which he was likely to attract criminal jeopardy and instead first disclosed in circumstances wherein his admission could not be used against him is also a factor in my rejection of the evidence of Anthony Reid.

[68] I do not believe the evidence of Anthony Reid and it does not raise a reasonable doubt in my mind concerning Rusheed Dudhi's knowledge of the presence of the drugs in the BMW.

[69] I reject the evidence and explanation offered up by Rusheed Dudhi for the following reasons:

• Knowing that his brother Anthony had a checkered past that may have involved drugs, knowing for certain, as of March 2013 that his brother was charged with serious drug offences, knowing that his brother had been using the BMW right up to the date of his vacation just prior to his arrest on the drug charges, knowing that he was himself subject to bail conditions on drug charges, and knowing that his young family would be using the vehicle, it is inconceivable that he would not have made, well prior to September 2014, both an intensive interrogation of his brother about whether the car contained drugs and a careful and thorough examination of the vehicle;

• Based on the undisputed fact that Oosterhoff was able to locate and expose the stash compartment without the aid of scans or tools of any sort, and within minutes if not seconds of the commencement of his search of the rear seat I find that even a casual examination of the state of the back seat would have alerted Dudhi to the presence of the compartment and the drugs.

[70] I conclude, fundamentally on this basis that Dudhi was aware of the stash compartment and that the drugs located therein were his and not his brothers.

[71] There is other evidence that standing on its own would not sustain a conviction but taken together are consistent with the conclusion I have reached concerning Dudhi's knowledge and control of the drugs found by Oosterhoff. This includes the following:

• Dudhi is a long-time resident of east Hamilton. I have difficulty with the notion that he would have difficulty recognizing the difference between the exits for the Red Hill Expressway and the Lincoln Alexander Parkway;

• Given the fact that Dudhi was probably looking for a person he was to meet at the Montana's parking lot the evidence from Clayton about mean mugging at the outset is equivocal. The staring after the return from the meeting is less equivocal and consistent with someone concerned about being followed;

• I prefer and credit the evidence from O'Hagan about the location of the U-Turn on Stonechurch and about whether Dudhi stared at him at the time of the U-Turn and that evidence I find to be consistent with someone who is concerned about being followed;

• I find it curious that someone who was wanting to buy 2 tickets for $20 would not come to the meeting with cash in hand and even more curious that Dudhi having obliged the purchaser by driving to a mall on the east mountain, that purchaser would not drive Dudhi back to his vehicle and drop him at a corner instead.

[72] I have carefully considered the balance of the evidence and find that there is nothing else that causes me to entertain a reasonable doubt about Dudhi's possession of the drugs.

[73] I am satisfied beyond a reasonable doubt that Dudhi was in possession of the drugs found by Oosterhoff on September 16, 2014. He is found guilty of that offence.

[74] Is a cell phone a cell phone if it is not connected to a network? The purpose of the bail condition was to prevent and prohibit mobile telecommunication. Dudhi says the second cell phone was not connected to a network and therefore incapable of sustaining mobile communication. Surprisingly I have no evidence from the Crown that establishes that the second cell phone was even operational much less capable of supporting communication. In the circumstances, although the existence of the device is sufficient to sustain the grounds for the arrest, I am left in a state of reasonable doubt on the charge of failure to comply.

Released: June 14, 2017

Signed: "Justice George S. Gage"