DATE: 2021.08.08 COURT FILE No.: St. Catharines N17-4215
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
and
GULED MOHAMED
Before: Justice Fergus ODonnell
Reasons for judgment released on 8 August, 2021
Counsel: Ms. D. Polgar, for the Crown Mr. J. R. Barrs, for the defendant, Guled Mohamed
Reasons for Judgment
Overview
In 2017, the Niagara Regional Police conducted a months-long investigation of several people suspected of running a mobile heroin and cocaine trafficking organization. Guled Mohamed was one of the people investigated. The other suspects were Dolal Jama, Ibrahim Suliman, Moktar Youssouf, Gulaid Omar, Husam Ali and Mohamed Ali. A white Hyundai Sonata (hereafter “the Sonata”) owned by Ibrahim Suliman figured prominently in the police surveillance.
During the investigation, the undercover officer called two telephone numbers to order cocaine and a third telephone number to order heroin. An agreed statement of fact set out various purchases and interactions involving or observed by the police from the end of July, 2017 to the end of October, 2017.
Mr. Mohamed is charged with possession of crack cocaine for the purpose of trafficking and possession of the proceeds of crime on 2 November, 2017 arising out of a search of a house on Leeming Street in Niagara Falls. Mr. Mohamed and his then co-defendant, Briar Goodale, were sleeping in the house at the time of the search warrant, along with Ms. Goodale’s young son. Mr. Mohamed and Ms. Goodale were boyfriend and girlfriend. The house was Ms. Goodale’s. The warrant resulted in the seizure of twenty-eight grams of crack cocaine that was concealed in the basement ceiling and the police found an undefined amount of cash in a jacket pocket in a closet.
Ms. Goodale and Mr. Mohamed were originally represented by the same lawyer, not Mr. Barrs, who brought a challenge to the search at the Leeming Street house. I found the grounds for the warrant to be generally solid (the information to obtain related to multiple locations arising out of the long investigation), but insufficient for the Leeming Street address and excluded the evidence insofar as it related to Ms. Goodale, leaving no case for her to answer. I did not exclude the evidence against Mr. Mohamed because he did not have standing to challenge the search at the Leeming Street house, [^i] so he proceeded on to trial, albeit delayed for a long time by the entry of new defence counsel and the advent of Covid-19, which wiped out trial dates in late March, 2020.
Mr. Mohamed was represented for the trial itself by Mr. Barrs.
The evidence at trial was a mixture of witnesses, affidavit evidence and an agreed statement of facts. One of the Crown’s witnesses was Ms. Goodale.
Events Leading Up To The Search Warrant
Since it makes chronological sense and sets the search warrant of 2 November, 2017 in context, I shall start with a summary of the agreed statement of facts, which sets out details of the police undercover and surveillance investigation in the late summer and early fall of 2017. I do not propose to set out every detail, but I have considered the entire document in coming to these reasons.
The following events are included in the agreed statement of facts; each drug transaction involving the undercover officer was arranged by using the telephone numbers referred to above:
- 27 July: Mr. Suliman drives the white Sonata and sells $100 worth of crack cocaine to an undercover officer.
- 31 July: Mr. Jama drives a rented Nissan to sell $100 worth of crack to an undercover officer. The Nissan had been rented by Mr. Suliman in London.
- 2 August: Mr. Youssouf drives a rented Toyota to sell $100 worth of crack to an undercover officer. The Toyota had been rented from the same London rental outlet as the Nissan, again by Mr. Suliman.
- 8 August: Mr. Suliman uses the Toyota to sell $100 worth of crack to an undercover officer.
- 15 and 17 August: Mr. Suliman uses his white Sonata to sell $100 worth of crack to an undercover officer on each day.
- 30 August: Mr. Youssouf sells an undercover officer $100 worth of crack, using the white Sonata.
- 31 August: the police install a tracking device in the white Sonata.
- 6 September: surveillance shows Mr. Youssouf using the white Sonata to make four short visits, consistent with drug trafficking, over a short period.
- 7 and 19 September: Mr. Cele Kasamba sells the undercover officer $80 worth of crack, using a Saturn registered to him on each day. On 19 September Mr. Kasamba also makes five short stops that were considered consistent with drug trafficking. [^1] Later that day, surveillance of the white Sonata, driven by Mr. Youssouf, observes three quick visits in a forty minute period. A call to the heroin line leads to Mr. Youssouf selling $90 worth of heroin to an undercover officer.
- 20 September: Mr. Youssouf, driving the white Sonata, parks beside Mr. Mohamed, driving a black Jeep. Mr. Mohamed drops off a passenger who enters a nearby complex. The Jeep was rented from the same London rental car outlet as the other rental cars in the investigation. It had been rented by Ms. Goodale from 17-24 September.
- 10 October: this appears to be the first surveillance observation of the white Sonata at Leeming Street. Mr. Mohamed is seen driving the car from that address.
- 11 October: the white Hyundai is seen at a sushi restaurant. Mr. Mohamed and Mr. Jama come out of the restaurant and leave in Mr. Jama’s mother’s Pontiac.
- 12 October: the white Sonata is seen parked in the driveway of Leeming Street, along with Ms. Goodale’s RAV4, in the early morning.
- 20 October: the police learn that Ms. Goodale had bought Leeming Street on 15 September.
- 24 October: Mr. Mohamed drives the white Sonata from Leeming Street to Burgoyne Woods, where he meets briefly with the driver of a BMW in a parking lot. He also meets with someone driving a Corolla that had been used to sell heroin on 28 September and that driver spends seven minutes in the white Sonata before getting out and leaving. Mr. Mohamed then drives to an address in Niagara Falls and spends five minutes in the house. Using “strange routes” he then drives back to St. Catharines, to an address on Abbott Street, where he stays only four minutes and from there goes to an address in Niagara on the Lake where he stays only two minutes, returning to Leeming Street where he parks the white Sonata in the driveway along with Ms. Goodale’s RAV4.
- 25 October, 2017: the white Sonata is seen leaving Leeming Street and going to a restaurant on Lundy’s Lane. Mr. Mohamed and Mr. Jama and an unknown male come out of the restaurant and go to the outlet mall. From there Mr. Mohamed drives the white Sonata with Mr. Jama as his passenger, driving in an “evasive and erratic” fashion to Burgoyne Woods, where Mr. Mohamed meets up with the Pontiac that belongs to Mr. Jama’s mother. That meeting lasts less than ten minutes. On leaving, Mr. Mohamed engages in “obvious” countersurveillance and the police discontinue their observations.
- I have left out numerous other observations of drug trafficking activities or apparent trafficking activities involving various targets of the investigation and various vehicles.
Leeming Street And The Search Warrant
Ms. Goodale testified that she had owned the Leeming Street house since mid-September, 2017, only six weeks before the search warrant and her and Mr. Mohamed’s early-morning arrests. For all intents and purposes the house was Ms. Goodale’s, although a family friend was also on title to help Ms. Goodale qualify for her mortgage. It was not Mr. Mohamed’s house. Ms. Goodale said that Mr. Mohamed had moved in on 3 November, 2017, i.e. the day after their arrest on these charges. It was a condition of his release for him to live there, although she had not invited him to live there, did not know why that condition was imposed and was surprised when it happened (although she was fine with it). She said that he was not living with her before then. When asked when she typically saw Mr. Mohamed before their arrest, Ms. Goodale said that she had Thursdays off work, plus every second weekend and occasionally during the week she would see him. He would typically come over later in the evening three or four times a week, but was actually living with his mother before his bail condition was imposed requiring him to live at Leeming Street.
At the time of the search, Ms. Goodale was a personal support worker, a job she had held for about four years. She had a six-year-old son. When Ms. Goodale took ownership of Leeming Street in mid-September, 2017 she had about a two-week overlap when she had possession of Leeming Street and the apartment she was moving out of. She moved things over gradually. Mr. Mohamed moved some of his possessions over from his mother’s home during the same period. Mail and identification relating to Mr. Mohamed were found in Leeming Street, including his passport.
Ms. Goodale testified that she was working long hours and was away from Leeming Street much of the day. Her workdays were from six a.m. to six p.m., occasionally punctuated by a quick return home to use the washroom or for a quick lunch. During her absences, Mr. Mohamed had access to the house via an unlocked door and there were times when she had come home to find various friends of his there, perhaps visiting or using the computer. She did not testify about these events being particularly frequent. Of necessity, speaking of events happening in her absence, Ms. Goodale could not testify with absolute authority about the extent to which other people attended the house when she was not there. Her description of who she knew of using the house in her absence was somewhat broader during her testimony at Mr. Mohamed’s trial than it was at her and Mr. Mohamed’s Charter application. In her testimony and by way of an affidavit filed as an exhibit after she testified, Ms. Goodale said that one of the visitors to Leeming Street was a man named “Li”, or Liban Omar, who was out on bail pending appeal for a cocaine trafficking conviction and who had access to Leeming Street without either her or Mr. Mohamed’s presence, “because he told me he needed to use my internet service in order to apply for jobs and for school.”
Constable Taylor Cummings was one of the officers on the search warrant and took custody of Ms. Goodale briefly while the house was secured. He testified that Ms. Goodale spontaneously asked him how the police even knew about this place. Ms. Goodale had admitted in her examination-in-chief that she had probably said such a thing. The Crown says that is a peculiar wording for someone who professes to have had no knowledge of any illicit goings-on at the home she shared with her six-year-old son. I agree, but I stress that the oddness of that utterance goes only to Ms. Goodale’s credibility (e.g. when she says that she was entirely unaware of anything illicit happening at her house). That is to say that, contrary to the Crown’s request that I use this utterance as evidence against Mr. Mohamed, I cannot use the peculiarity of Ms. Goodale’s phraseology as evidence of Mr. Mohamed’s guilt; her utterance to Constable Cummings and any inference to be drawn therefrom is pure hearsay in relation to Mr. Mohamed.
Constable Cummings later searched a blue buffet on the ground floor and found various documents in the top drawer, including a car rental agreement with Mr. Mohamed listed as an authorized driver, Mr. Mohamed’s passport, his wallet with Health Card and miscellaneous other documents bearing Mr. Mohamed’s name. One of the documents was a Ministry of Transportation driver’s abstract dated two days before the search.
Constable Cummings then moved to the basement, where he saw a red tie hanging on the wall, at ceiling level. An area of the ceiling immediately above the tie was not enclosed by drywall. The drywall ceiling began just to the left of where the tie was, creating an accessible gap between the drywall and the underside of the flooring above. At six feet tall, Constable Cummings had to reach up to search that area; he could not recall so long after the event if he had to stand on something or not. In that cavity Constable Cummings found a pair of large rolled-up men’s sport socks, which he unrolled, finding what he considered to be crack and powdered cocaine. There was a small digital scale, about three inches square, in the same area.
Ms. Goodale testified that the basement ceiling was about six-and-a-half or seven feet high. She was five-feet-and-three-inches tall; Mr. Mohamed was six-feet-three. She could not have reached the basement ceiling hiding spot without standing on something. She had not participated in the home inspection and had no knowledge of the drugs or scales found in the basement ceiling. To her knowledge the ceiling was the same when she took possession of the house as it was when the police arrived. She would have no way of knowing if a previous owner or some other person with access to the house had put those items in the ceiling. She had someone in to snake the drain, which was in the general vicinity of the ceiling area where the drugs were found in mid-September and a painter came around the same time. She did not keep the side door of the house locked.
Ms. Goodale denied any knowledge of the presence of the cocaine or of the scales found with it.
The Crown tendered a report based on the tracking device placed in the white Sonata. That report showed that in the period from 16 September to 25 October [^2], the white Sonata could be placed overnight at Leeming Street seventeen times. All seventeen overnight times actually fell within a narrower time range, i.e. from 29 September to 25 October insofar as the car was at Leeming for a few very brief attendances on 16-18 September and then not again until 28 September.
The nature of the substance, the amount and the fact that whoever possessed it did so for the purpose of trafficking were admitted facts.
Has The Crown Proved Its Case Beyond A Reasonable Doubt?
Mr. Mohamed is presumed to be innocent of the charges. That presumption runs with him through to the end of the trial. The presumption of innocence is only displaced if the evidence demonstrates his guilt beyond a reasonable doubt, which is a very high standard of proof. Mr. Mohamed is not required to prove anything at this trial.
The Crown’s case against Mr. Mohamed is a circumstantial case, which is to say that there is no direct evidence to place him in possession of the cocaine or the money but instead a series of circumstances from which the Crown says I should infer beyond a reasonable doubt that Mr. Mohamed was in possession. Possession necessarily requires knowledge and an element of control. There are various forms of possession in law, including actual possession and constructive or joint possession.
Circumstantial evidence is entitled to respect in the sense that a sufficient accumulation of pieces of circumstantial evidence may support a conclusion as reliably as direct evidence offered in support of that conclusion, indeed perhaps more reliably, depending on the quality and nature of the direct evidence. At the same time, it is in the nature of circumstantial or inferential evidence that it might support more than one conclusion. In an environment governed by proof beyond a reasonable doubt I can only rely on circumstantial evidence to convict if I am satisfied that no other reasonable inference is available. An alternative inference, i.e. one that is not consistent with guilt and could thereby demonstrate reasonable doubt, can be based on the evidence or lack of evidence, but the Crown is not required to disprove every speculative alternative possibility in order to obtain a conviction: “alternative inferences must be reasonable, not just possible.” [^3]
Ms. Goodale was not the most impressive of witnesses. There may be a number of reasons for this. Given the chronology of the case, she was testifying three years after the events. Also, powers of observation and recollection vary dramatically from person to person. My sense was that there was some element of simple uncertainty in her evidence, for example with respect to which month she fully moved into Leeming Street. Errors like that might justify caution in relation to a witness’s reliability for detail, but not for her truthfulness. She was also testifying in relation to serious charges against her partner, the father of one of her children. I am concerned, for example, with the tentative nature of her evidence about who the large jacket with cash in the pocket in the closet in Exhibit 16B belonged to, given that she had only just moved into the house, that she and her six year old son and Mr. Mohamed were the only occupants and that it was not her jacket. I was left with the impression that she was loth to connect a pocket of cash to her domestic partner in a drug case. [^4] It was also hard, to be charitable, to make sense of her evidence about Mr. Mohamed working as an informal taxi driver and/or a food delivery driver when she said he did not have regular access to a car. Her evidence about Mr. Mohamed’s car access is particularly difficult to reconcile with the tracking evidence showing the intensity with which the white Sonata was at her home in the period leading up to the search warrant. It simply beggars belief that she could have been unaware of the presence of that car at her residence so often during that time period. At the same time, the frequency with which that car was at her home overnight does support her evidence that Mr. Mohamed came over three or four nights a week (she also testified he had the run of the place when she was not there, although it was ultimately subject to her call).
It struck me as mind-boggling when Ms. Goodale said she and Mr. Mohamed had never discussed the cocaine found in the basement ceiling. It was also hard to reconcile with her agreement very soon thereafter when cross-examined by Mr. Barrs that when Mr. Mohamed was released on bail she asked him, “what the hell happened”. In context, the cocaine in the ceiling the day before was exactly, “what the hell happened”, so both statements cannot be true. It is hard to imagine that there would be any more compelling issue for discussion after you and your partner and your son have been roused in the wee hours by a police intrusion, bundled off and taken for bail hearings and then released. It is absurd to suggest that nothing was discussed as she said in examination-in-chief. Her “explanation” for the discrepancy in re-examination was entirely unconvincing. “Never” is an absolute and unforgiving word and Ms. Goodale testified that she and Mr. Mohamed had never discussed how the cocaine got into the basement ceiling. My general sense is that Ms. Goodale was trying to protect Mr. Mohamed as much as she could when she testified.
Constable Cummings was a homicide officer. He had no connection to the case other than being called in to assist with a search warrant on a drug squad project takedown. There was nothing controversial about Constable Cummings’s evidence. It was not challenged. I take it at face value. He found what he found and Ms. Goodale said what he testified she said to him, as set out above.
There was a number of points made in argument that do not strike me as of great import. For example, I have already commented on the limited use I can make of Ms. Goodale’s declaration of surprise about the police knowing about “this place”. The fact that there was no evidence of fingerprint or DNA testing or results in relation to the drug packaging is neither here nor there. It is a simple absence of evidence; neither was there evidence of the real-world utility of such testing in circumstances such as these. It was suggested that there was no evidence that Mr. Mohamed knew the particular nature of the substance concealed in the basement ceiling; the law is clear, however, that the degree of knowledge required in a drug case relates to knowledge that the substance is a controlled substance, not the precise nature of the controlled substance. In many cases, that knowledge and control will have to be inferred from indirect evidence.
I note that Mr. Barrs accused the Crown of speaking with forked tongue [^5] by arguing earlier in the case that Mr. Mohamed did not have standing to challenge the search and arguing at trial that his possession and control were made out beyond a reasonable doubt. This serious allegation is based on an obvious false dichotomy since the tests for standing and possession are different. “Poor” Mr. Edwards, whose name has for a quarter century been linked to the concept of standing to challenge a state intrusion on one’s privacy interests actually had a key to his girlfriend’s apartment, unlike Mr. Mohamed, was found by the Supreme Court to have no standing to challenge the search there and nonetheless had his conviction for possession of narcotics for the purpose of trafficking upheld because he lacked standing to challenge the search: R. v. Edwards. If there were merit to Mr. Barrs’s contention, then the Crown could never dispute standing on a section 8 Charter breach and then seek a conviction, which would make the idea of standing as a constitutional concept superfluous, to use a charitable word.
In determining the issue of possession of the drugs I disregard the Crown’s analysis of Ms. Goodale’s economic circumstances insofar as that analysis is based on her employment or lack thereof after her arrest, rather than her economic position at the time of her arrest, which was more favourable, about one-third more than her post-arrest hourly rate, along with long hours worked. I also do not consider the fact that Mr. Mohamed’s address on the charging information shows Leeming Street as his residence since that is a police-generated document and has no evidentiary value in this context, where there was no evidence tendered as to how that address came to be on the document (was it put there by an officer who drafted it based on where he was found sleeping or based on an utterance by Mr. Mohamed to a booking officer, for example?)
Mr. Barrs suggests that perhaps it is Ms. Goodale who is the Keyser Söze (my words, not his) of the cocaine in the ceiling beams and suggests that whatever evidence there may be in relation to Mr. Mohamed and the cocaine, that would not absolve Ms. Goodale. What absolved Ms. Goodale, from criminal consequences however, was the exclusion of evidence in relation to her as a result of the Charter breach involving a location over which she had undisputed standing. Ms. Goodale is no longer on trial. I would say that the only evidence tendered at Mr. Mohamed’s trial to put her in possession of the cocaine in the ceiling beams is the fact that it was in her home, along with her utterance to Constable Cummings of, “how did you know about this place?”, which could be used to impute knowledge of illicit activity to her. Whether the evidence against her would have led to a conviction if she had not succeeded on the Charter argument is neither here nor there, especially since one form of possession in law is joint possession.
I accept as a possibility that a previous owner could inadvertently leave drugs behind in a house when it is sold. I accept as a possibility that one of the other people who had access to the house could have used the house as a stash for the cocaine, although the nature of the drug trade is that a dealer would generally want reasonably prompt and certain access to his or her stash. One cannot sell what one does not have access to. I accept as a possibility that Ms. Goodale was not entirely honest about what she knew.
The existence of another possible inference, however, does not necessarily constitute reasonable doubt. As I have noted earlier, the other possibility must be a reasonable one. I also note that the other possible inference must not only be reasonable insofar as it demonstrates a potential other explanation for the presence of the cocaine, it must demonstrate reasonable doubt about Mr. Mohamed’s knowledge and control of the cocaine, by which I mean that the possible involvement of additional actors does not necessarily create reasonable doubt about Mr. Mohamed’s involvement. It is not uncommon for more than one person to have “possession” or knowledge and control of an item.
Ultimately, I must decide this case on all of the evidence, seen in totality and measured against the standard of proof beyond a reasonable doubt. While Mr. Mohamed was, from a constitutional perspective, only a “privileged guest” in Ms. Goodale’s home, the evidence at the trial proper shows that his was an established and frequent presence there in the period from her purchase of the house up to the search warrant. Documents of his that were current (the driver’s abstract) and significant (the passport and health card), for example were found in the house. His clothing was there. He had virtually unrestricted access to the house, including the basement ceiling beams. If that were all the evidence against him, Mr. Barrs’s submissions would have more traction, although he is not the only person of whom that could be said. However, that is not the only evidence against him. His interactions with the other targets of the investigation who were demonstrated to have conducted dozens of actual or suspected drug transactions, standing alone, may not be determinative, but they are not irrelevant. The surveillance of specific meetings involving him that are consistent with drug trafficking, standing alone, may not be determinative, but it is not irrelevant. The pattern of those meetings, for example from Niagara Falls to St. Catharines to Niagara-on-the-Lake and back to Niagara Falls, all in short order and for short duration, is not, standing alone, determinative, but it is not irrelevant. The manner of his driving, which is repeatedly consistent with “surveillance consciousness” is not determinative, but it is not irrelevant.
One question for me to decide is whether or not any of the other possible inferences advanced as being available on all of the evidence is sufficient to leave a reasonable doubt about Mr. Mohamed’s guilt. The answer is “no”; the alternative explanations do not rise above speculation. At best they demonstrate the possible involvement of additional individuals, not reasonable doubt about Mr. Mohamed’s involvement with the cocaine in the basement ceiling beams. [^6]
Conclusion
The ultimate question on count one is whether or not I am satisfied that all of the evidence viewed in its entirety demonstrates beyond a reasonable doubt that Mr. Mohamed was in possession of the ounce of crack in the basement ceiling beams, meaning that he knew of its presence and exercised some measure of control over it, either alone or with others. I am satisfied that the totality of the evidence rises to that high standard and I find him guilty as charged on the charge of possession of cocaine for the purpose of trafficking.
The ultimate question on count two, the possession of proceeds of crime, is the same question just directed at another commodity. Insofar as there was no evidence led at trial of the amount of money in the jacket pocket (other than that what was visible looked awfully like a Canadian twenty-dollar bill), I cannot be satisfied that the proceeds charge is made out beyond a reasonable doubt. On the facts of this case, a single twenty does not a proceeds count make. I find Mr. Mohamed not guilty of the proceeds charge.
Released: 8 August, 2021
Footnotes
[^1]: Observations of behaviour “consistent with drug trafficking” or similar language are part of the overall body of evidence to be considered in a drug trafficking or possession for the purpose trial. Obviously, the weight, if any, to be given to such observations will vary depending on the number of events, the particular details, if any, of each observation, the possibility of other explanations, etc. The same approach applies to police observations of peculiar driving behaviour or “surveillance-conscious” driving.
[^2]: Ms. Goodale obtained possession of Leeming Street on 15 September and I am told the tracking device was discontinued on 25 October.
[^3]: R. v. Villaroman, 2016 SCC 33, including at paragraph 42, per Cromwell, J writing for the Court.
[^4]: It would not have been within Ms. Goodale’s knowledge that the Crown would ultimately omit to prove the actual amount of cash in the jacket pocket. A reasonably intelligent person would appreciate that, if the Crown were in a position to prove the presence of a large amount of cash in a building that also contained a trafficable amount of a controlled substance, that fact could bolster the case against any occupant of the house, in this case her partner, Mr. Mohamed. I entirely reject Ms. Goodale’s supposed lack of knowledge about the ownership of the jacket. This was not an occasion on which she was an unreliable witness, it was an occasion on which she was a dishonest witness.
[^5]: My words, not his—he pondered whether the Crown was engaged in abuse or sharp practice, language that I felt was out of order in the circumstances.
[^6]: By ‘involvement’ I mean ‘possession’ as defined in the Criminal Code, including the requisite knowledge and control.
[^i]: Mr. Mohamed and Ms. Goodale were jointly represented for the pre-trial motions. Their lawyer brought an application for exclusion of the fruits of the search warrant at Leeming Street. Contrary to the implication made by Mr. Barrs during submissions on the trial, they were both ably represented on that application; the written materials and oral submissions of their counsel were both of high quality. The difference in outcomes on the application did not reflect on the ability of counsel but rather on the fundamental and inescapable difference in how Ms. Goodale and Mr. Mohamed were situated, in both fact and law.
The defence applications with respect to (a) the validity of the warrant and, (b) the exclusion of the evidence seized both succeeded, but only in relation to Ms. Goodale, for reasons that I shall set out. The warrant information-to-obtain addressed searches for eight locations including Leeming Street. Overall, the information-to-obtain clearly satisfied the statutory and constitutional standard of judicially-scrutinized reasonable grounds to believe that offences had been committed and that evidence relating to those offences was likely to be found at most of the locations to be searched. This was a long-term project generating a lot of clear evidence of the involvement of most of the targets in drug trafficking and the information-to-obtain reflected that. Indeed, defence counsel on the application conceded that the information-to-obtain was fit for purpose other than in relation to Leeming Street. That was a responsible position for her to take; it was the only credible position for her to take in the circumstances.
Given the timing, Leeming Street only came into the mix rather late in the investigation, as Ms. Goodale only acquired the house in mid-September. The grounds in relation to Mr. Mohamed’s involvement in the drug trafficking were not as strong as the grounds for various of the other targets in the sense that he was not involved in any hand-to-hand trafficking to the undercover officer, a point clearly made by his counsel on the application. However, in the overall context of the information-to-obtain, the pattern of association, short visits, driving, etc. satisfied the relatively low standard of reasonable grounds to believe he was involved in trafficking in controlled substances as alleged in the information to obtain. What was missing was sufficient grounds to demonstrate that Leeming Street was a place where drugs were reasonably expected to be found, because Mr. Mohamed’s connection to that place was recent and, as set out in the information-to-obtain, limited. In the absence of such grounds, the warrant for Leeming Street was fatally flawed and could not lawfully have issued (a location by location sufficiency of the grounds for multiple search locations is essential in every warrant application).
The violation of Ms. Goodale’s Charter-protected rights was a serious violation insofar as it involved an intrusion into her home and insofar as the shortcomings in the information-to-obtain ought to have been obvious. The impact on Ms. Goodale was significant insofar as her home was a high-value location in terms of Charter privacy interests and insofar as the laying of charges against her arising solely out of the execution of the warrant resulted in her loss of employment that paid her close to twenty-dollars per hour for a 44-60 hour work week. I do not lightly disregard the impact of crack cocaine on the community, but the law is clear that when there has been a serious violation with serious effects on the defendant, the importance of the evidence to the prosecution cannot necessarily be relied on to turn the balance towards admission of the evidence at trial.
Ms. Goodale’s and Mr. Mohamed’s original counsel argued valiantly that Mr. Mohamed also had standing to challenge the search at Leeming Street. On that issue, however, the Crown had an overwhelmingly strong position and Mr. Mohamed’s argument had no credible traction.
The seminal decision in relation to standing to challenge a search remains the decision of the Supreme Court of Canada in [R. v. Edwards](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii255/1996canlii255.html), although it has obviously been applied and interpreted countless times in the quarter-century since. Edwards sets out a non-exhaustive but significant list of factors to be considered in determining whether or not a defendant has established a personal right of privacy or standing, as follows, from the majority judgment written, by Cory, J, at paragraph 45:
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
The evidence in relation to Mr. Mohamed’s connection to Leeming Street is at least as sparse as the evidence of Mr. Edwards’s connection to Ms. Evers’s residence as set out by the Supreme Court, perhaps more so. The home was Ms. Goodale’s and she and Mr. Mohamed had never lived together before. Although they had known each other for over a decade, their relationship was much more off than on. The relationship was still on/off when Ms. Goodale was living in her previous residence. In the few months preceding the search, Mr. Mohamed would spend the night either at her previous apartment or Leeming Street “probably three times a week”, but he was living with his mother and sisters. It was Ms. Goodale who had the final say on who came and went at Leeming Street. Mr. Mohamed had an ‘open invitation’, which sounds rather like the “privileged guest” status that failed to suffice for Mr. Edwards. Mr. Edwards had a key; there was no evidence on the application that Mr. Mohamed had a key to Leeming Street. He only moved into Leeming Street and changed his address to that location after he was released on bail.
The evidence on the application showed that Mr. Mohamed was present when the warrant was executed. He did not have ownership of the residence or the ability to regulate access other than under Ms. Goodale’s authority. His historical use of the property was short-term and dependent on Ms. Goodale’s acquiescence. There was no evidence on the application of him having a subjective expectation of privacy or having possession or control of the place. If he had asserted a subjective expectation of privacy, on the facts before me that expectation would not have been reasonable.
