Court File and Parties

COURT FILE NO.: CR-13-90000090-0000 DATE: 20160429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ABDULLAHI ABTI RAGE

Counsel: Chris De Sa and Elizabeth Bellerose, for the Crown William Jaksa, for the Defence

HEARD at Toronto: 11, 12, 13, 14, 18, 19 and 21 April 2016.

Reasons for Judgment

Graeme Mew J.

[1] Abdullahi Abti Rage stands charged with three counts of trafficking cocaine, one count of possession of cocaine for the purpose of trafficking, and one count of possession of marijuana for the purposes of trafficking. He has elected to be tried on these charges by judge alone.

[2] The evidence adduced at trial discloses that on a number of occasions, Ali Mohamed Ahmed sold cocaine to an undercover police officer. The Crown alleges three occasions on which the accused, Mr. Rage, was Mr. Ahmed’s supplier. After the third of these transactions, a warrant was executed at the residential address of Mr. Rage and quantities of cocaine and marijuana were found in his apartment and seized along with what is said to be drug-related paraphernalia; cocaine was also found in a car parked in the underground parking area of his building and seized.

Evidentiary Issue

[3] After the completion of the evidentiary portion of the trial, during the course of reply submissions by defence counsel, an issue arose as to the extent to which, in relation to the charges against Mr. Rage, the court should consider hearsay statements attributed to Ali Ahmed.

[4] During the course of giving his evidence, the undercover police officer recounted various statements which Mr. Ahmed is said to have made.

[5] An example would be the following answer, given by the undercover officer during the course of his testimony:

So when he called me back [Ahmed] said “I can meet you at 3 at Timmy’s. I’m going to see my boy now”.

[6] The defence asserts that the use of hearsay statements attributed to Mr. Ahmed was, by agreement, limited to providing context or narrative.

[7] By contrast, the Crown asserts that the evidence of what Mr. Ahmed said to the undercover officer is admissible under the co-actors’ exception to the hearsay rule, which provides that hearsay statements made by other parties in the furtherance of a common design are admissible for their truth against an accused to determine if the accused is an actual member of the common design: R. v. Carter, [1982] 1 S.C.R. 938, 67 C.C.C. (2d) 568, [1982] S.C.J. No. 47.

[8] Defence counsel asserts that had he not been of the belief that the Crown had agreed to limit the use of what Mr. Ahmed is said to have said to “narrative”, the defence would have been conducted very differently, particularly having regard to the cross-examination of some of the police witnesses, the testimony of Mr. Rage himself, and the possibility of calling Mr. Ahmed as a witness at trial (Mr. Ahmed did not testify at this trial).

[9] And I pause there to note that perhaps a refinement of what I have just said is that perhaps a more accurate statement of the defence position is that the it had not been agreed that the evidence was admissible; there is a dispute over how the issue of admissibility would be addressed. Mr. Jaksa says it should be addressed by a voir dire, Mr. De Sa says it should be addressed at the conclusion of trial. The key point is that Mr. Jaksa proceeded on the assumption that the issue of admissibility taken by the Crown had not been accepted by the court at that point and conducted himself accordingly.

[10] According to defence counsel, Crown counsel knew, or should have known, that the defence had refrained from challenging the admissibility of evidence concerning Mr. Ahmed’s statements because of its understanding as to the limited use to which such evidence would be put.

[11] Defence counsel points to an intervention that occurred early in the course of the testimony of the undercover officer. After testifying that Mr. Ahmed had said to the officer “I’m going to see my boy now”, the following exchange occurred:

Ms. Bellerose: What does that mean to you when he says he’s going to meet his boy now? Witness: To me it means he was going to pick up the order from his supplier and he’s going to see him now at two o’clock meaning that he would be able to meet me by three instead of four. Ms. Bellerose: Alright, then what happened officer? Mr. Jaksa: Sorry, Your Honour, I just need to clarify. That was hearsay, sort of…. I know that’s going in for the narrative but he also offered…the officer offered his opinion there which I don’t know is proper evidence at this time. The Court: Sorry, as to what he understood by the terminology? He can say what he understood – whether or not it’s opinion – I’m sure it is. Mr. Jaksa: You’re right Your Honour, I’ll just address it in cross.

[12] The defence complains that the Crown did nothing to disabuse defence counsel of his manifest understanding as to the limited use to which the evidence of what Mr. Ahmed had said would be put.

[13] Further, as a matter of process, the defence says the Crown bears the onus of establishing that the hearsay statements of Mr. Ahmed are admissible by reason of the co-actors exception to the hearsay rule.

[14] The Crown takes the opposite position, saying that the statements are presumptively admissible and that the defence bears the onus of persuading the court to exclude them.

[15] In oral submissions, the Crown did not accept that it agreed to any limitation on the use to which the evidence of what Mr. Ahmed said could be put. However, in a written aide to argument submitted by the Crown it is stated:

The Crown relies on the utterances of Ahmed in the context of the drug transactions as part of the narrative and to explain Ahmed’s various acts and as statements of intent, statements accompanying acts ( res gestae ).

[16] The Crown also refutes the assertion by the defence in this case that the issue of admissibility of Mr. Ahmed’s statements should have been addressed early on in the case, through a voir dire. Rather, in order to determine the admissibility issue, the Crown argues that all of the evidence adduced during the trial, including the statements of co-conspirators should first be heard. It is then for the trial judge to make the determination of whether Mr. Rage and Mr. Ahmed were participants in a conspiracy or common design and, if so, the effect of the hearsay evidence made admissible by the application of the co-conspirators’ exception (in cases with a jury, the trial judge would be responsible for separating the two issues carefully for the jury in his or her charge).

[17] While relying on Ahmed’s statements as “statements of intent” or “statements accompanying acts” on the one hand, or as evidence directly admissible against Mr. Rage, on the other hand, strikes me as a distinction without a practical difference, the law favours the Crown’s assertion that the evidence of what Mr. Ahmed said is presumptively admissible against Mr. Rage.

[18] Furthermore, the Supreme Court of Canada in Carter rejected the approach of determining the application of the co-actor exception on a voir dire.

[19] Evidence falling within a traditional exception to the hearsay rule – such as the co-conspirator’s exception – is presumptively admissible because the admissions typically have an inherent component of necessity and reliability (the requirements that make up the principled approach to the admission of hearsay evidence): R. v. Simpson, 2007 ONCA 793 at paras. 14-17; R. v. N.Y. 2012 ONCA 745 at para. 67.

[20] Applying the three step test set out in Carter to the evidence I have heard, I can briefly summarise my conclusions as follows:

1. I am left in no doubt that Mr. Ahmed was involved in a conspiracy or common design to traffic cocaine: he clearly had a supplier.
2. On consideration of the evidence directly admissible against Mr. Rage, I am satisfied on a balance of probabilities that Mr. Rage was a participant in that common design: on three occasions Mr. Ahmed engaged in hand to hand drug transactions with the undercover officer within minutes of meeting with Mr. Rage.
3. Having regard to all of the evidence including the acts and declarations of Mr. Ahmed made in furtherance of the common design, I am satisfied beyond a reasonable doubt that Mr. Rage was a participant in the conspiracy or common design with Mr. Ahmed.

[21] Accordingly, the hearsay statements of Mr. Ahmed, as relayed by the undercover officer, are admissible.

[22] In the unusual circumstances of what has occurred at this trial, however, the analysis should not end there.

[23] Despite the evidence being legally admissible, the conduct of the defence was predicated upon an understanding that the evidence was only being tendered by the Crown for the limited purpose of narrative or context. On at least one occasion, early on in the trial, when there was an intervention which clearly demonstrated that the defence was proceeding on that understanding, nothing was done by the Crown to disabuse the understanding of defence counsel as to the limited use to which the evidence would be put.

[24] Although, when the misunderstanding came to light, very late in the course of closing submissions, the Crown offered to remedy the situation by recalling the undercover officer and making any other reasonable accommodation, I take defence counsel at his word when he says that he would have run the whole trial completely differently. Although defence counsel did not formally request a re-trial, the import of his submissions is that a re-trial would be the only effective remedy that would overcome all of his concerns.

[25] Where, as in the present case, there has been a genuine miscommunication between counsel which has led to them presenting their cases on different understandings as to how certain evidence would be used, fairness dictates that the party that asserts it has been prejudiced should be given the opportunity of repairing that prejudice. If such a repair cannot be effected on a piecemeal basis, then, subject to what I am about to say, a re-trial would be an appropriate solution.

[26] In my view, though, a re-trial would be redundant in the present case because even if the hearsay statements of Mr. Ahmed are considered solely as part of the narrative (the defence position), I would reach the same conclusions on the trafficking charges.

[27] I therefore turn to the charges against Mr. Rage and the evidence relating to those charges, without consideration of the hearsay statements attributed to Mr. Ahmed other than as “narrative”.

The Facts

[28] On 21 September and 27 September 2011, an undercover officer bought small quantities of cocaine from Ali Ahmed. These hand to hand transactions took place in downtown Toronto.

5 October 2011

[29] On 5 October the undercover officer called Mr. Ahmed to set up a drug deal. They arranged to meet in the parking lot of a Tim Horton’s coffee shop in Scarborough. Mr. Ahmed was placed under police surveillance to determine whether he would pick up the drugs he was selling or whether he already had them. He was followed from his home to a parking lot near a Salvation Army location in Scarborough. There he was observed exiting his car and entering the passenger seat of a blue Infiniti motor vehicle that was parked there. After two minutes Mr. Ahmed returned to his vehicle. It was thought by the police officers observing him that he had something in his left hand, but they could not say what it was.

[30] Inquiries made by the police at that time disclosed that the Infiniti was a rental car and that the renter was Mr. Rage.

[31] Two occupants of the Infiniti were observed (although one of the officers only noted the presence of one occupant, the driver).

[32] The interaction between Mr. Ahmed and the Infiniti occurred at approximately 12:50 p.m. At 1:05 p.m. an undercover officer bought 2 round balls of crack cocaine weighing 22 grams from Mr. Ahmed for $1,400.

[33] Meanwhile, officers had maintained surveillance of the Infiniti. It was followed to two locations in the Scarborough area. At approximately 1:30 p.m. (there was a minor variance in the times given by the three officers involved) the Infiniti was observed at a Petro Canada gas station lot. Mr. Ahmed was there too. He approached the driver’s window of the Infiniti on foot. He put his right hand into the open driver’s door window of the Infiniti and was greeted by the Infiniti’s driver’s right hand. The officer observing this - Detective Constable Douglas - could not see whether anything was exchanged but said that from experience the actions of the two individuals concerned seemed consistent with an exchange rather than a greeting. D.C. Douglas was able to observe the face of the Infiniti driver at this time, identifying him as Mr. Rage. The Infiniti was then followed to two further locations.

27 October 2011

[34] On 27 October 2011, the undercover officer called Mr. Ahmed to set up another buy. At 2:01 p.m. they spoke and agreed to meet at the same Tim Horton’s parking lot that they had met at previously.

[35] Mr. Ahmed was followed from his residence in Ajax to 10 Gordonridge Place in Scarborough. In the meantime, surveillance was also being undertaken in the underground parking lot at 10 Gordonridge Place (Mr. Rage being the occupant of an apartment at that address).

[36] At 3:57 p.m. a surveillance officer saw Mr. Rage enter the underground parking lot and walk to what the officer described as a green Toyota Corolla in spot 98. It was subsequently determined that this spot was registered to Mr. Rage. The officer could not see a key in Mr. Rage’s hand but observed what she described as a key style motion opening the driver’s door. The trunk of the vehicle was then opened. Mr. Rage went to the rear. He put his right hand into the trunk and then into his right pocket. He also retrieved a water bottle. He went back to the driver’s door and locked it. He then exited the parking lot by a different door, wedging the door open with the water bottle.

[37] Mr. Ahmed and Mr. Rage were subsequently observed in conversation at 10 Gordonridge Place by a service door adjacent to an above ground parking area (steps from which door led down to the underground parking lot). Mr. Rage had been observed coming up from the underground parking. Mr. Ahmed was holding a white plastic bag with indecipherable writing on it. Mr. Ahmed gave Mr. Rage some money and the white bag and took something from Mr. Rage (the officer observing this could not see what it was).

[38] Mr. Rage was seen returning to the underground parking lot carrying a white bag. There is a nine minute discrepancy between the time that the officer observing Mr. Rage in the underground parking lot says that he returned to the underground parking lot and the time that the officer making the observations above ground saw Mr. Rage go back down towards the underground parking lot. A number of the officers acknowledged, during the course of being questioned, that they had not synchronised their watches or other time keeping devices.

[39] When Mr. Rage returned to the underground parking lot carrying the white plastic bag he was observed going back to the Corolla and opening it (the officer was still unable to see a key). He reached the central console. The officer could not see what he did. He then exited through the access door that he had originally entered the parking lot from, still carrying the white bag.

[40] At 3:16 p.m., shortly after his encounter with Mr. Rage, Mr. Ahmed called the undercover officer to say he would be there in two minutes.

[41] At 3:17 or 3:18 p.m. (depending on the officer testifying) the undercover officer purchased 29 grams of cocaine from Mr. Ahmed at the Tim Horton’s location for $1,750.

[42] At 7:53 p.m., Mr. Rage was once again observed in the underground parking lot at 10 Gordonridge Place. He opened the trunk of the Toyota and placed something, which was small enough to fit in the palm of his hand, from his right hand into his right jacket pocket. He then got into a different vehicle and left the area.

10 November 2011

[43] On 10 November 2011, the undercover officer called Mr. Ahmed at 2:55 p.m. and asked him if he could supply 7 oz. of crack cocaine.

[44] Mr. Ahmed called back a little later and said that he could meet the undercover officer at 4:00 p.m. in the parking lot at a Shoppers Drug Mart in Scarborough.

[45] At 3:38 p.m. Mr. Rage was observed in the underground parking lot at 10 Gordonridge Place going to the Corolla (described as black in colour by the officer observing it on that occasion). He went to the front driver’s side, unlocked the door with a key and lent into the front of the vehicle. He then went to the trunk, reached in, grabbed something and placed it in his front outside pocket. He then got into a Ford SUV (owned by Enterprise Car Rental), which had been parked in space 81 and exited the underground parking garage.

[46] At 3:44 p.m., Mr. Ahmed called the undercover officer. He said he was ten minutes away.

[47] At 3:55 p.m. Mr. Ahmed was observed in a Honda Civic at an Esso gas station at the intersection of McCowan and Ellesmere. The Ford SUV driven by Mr. Rage entered the lot and parked beside him. Mr. Ahmed got out of his car and into the passenger seat of the Ford SUV.

[48] After getting out of the Ford SUV, Mr. Ahmed stood and talked to Mr. Rage through the open passenger window of the Ford before the Ford backed up and drove away.

[49] After arriving at the pre-arranged meeting place, the undercover officer called Mr. Ahmed at 3:57 p.m. Mr. Ahmed said he would be there in “two seconds”. He arrived shortly afterwards.

[50] At or shortly after 4:00 p.m., the undercover officer purchased 85 grams of cocaine from Mr. Ahmed. Mr. Ahmed was then arrested.

[51] The Ford SUV driven by Mr. Rage was followed and then pulled over and he was arrested. Some Canadian and U.S. currency was seized as were two cellular telephones.

[52] At approximately 4:21 p.m. on 10 November 2011 officers attended at an apartment and at the underground parking area of 10 Gordonridge Place in order to execute a search warrant. During the search of the residence, police seized $3,850 in Canadian currency, various pieces of identification in Mr. Rage’s name, 2.44 grams of powder cocaine located in jeans hanging inside Mr. Rage’s bedroom. Digital scales were found in the living room and in the kitchen. Police located what was claimed by the Crown to be a metal cocaine press box in the living room. 17.43 grams of marijuana and 2 MDMA pills weighing .056 grams were also retrieved.

[53] A black 1998 Toyota Corolla parked in spot No. 98 was searched and found to contain 252.38 grams of cocaine in the trunk. Police also located 45 rounds of ammunition and a 10 bullet magazine under the front seat of the car.

[54] It is agreed that the quantity of cocaine seized from the Toyota Corolla is consistent with an amount that would be possessed for the purposes of trafficking.

Evidence of Mr. Rage

[55] Mr. Rage gave evidence. His work background involves employment with a number of car rental agencies. However, in March 2011 he started working at Dixon Auto Centre, a used car dealership. Although his evidence at trial was that he was in administration, then customer relations, in an affidavit sworn by him earlier in the proceedings, he had described himself as an “apprentice mechanic”.

[56] Mr. Rage was not licensed to sell second hand vehicles (although he was in the process of obtaining a licence). He was, however, involved in marketing. He also started buying cars and fixing them up as a side job. He derived his income from three sources. At Dixon Auto Centre, he received a salary – essentially minimum wage – as well as commissions related to his marketing activities. He also made money from buying and selling cars.

[57] The Toyota Corolla which was parked in the underground parking lot at 10 Gordonridge Place did not belong to Mr. Rage (a search undertaken on the VIN number of the Toyota disclosed that it was registered to Erin Autohaus). The vehicle had a licence plate on the rear and another positioned on the dashboard inside the vehicle. Mr. Rage explained that he owned the plates but that the plates were not attached to any vehicle. He explained it was necessary for the car to have plates in order to avoid it being towed from the underground parking lot by Toronto District Housing Corporation. Mr. Rage had been asked to store the Toyota by Mr. Ahmed, who was his cousin. He had been told by Mr. Ahmed that the vehicle had been owned by another cousin of Mr. Ahmed’s. The intention was to transfer ownership of the car over to Mr. Ahmed’s sister. Because Mr. Rage was in the automobile trade and his residence was physically located closer to the departed cousin’s former residence than Mr. Ahmed’s home in Ajax, it was considered expedient to have the Toyota stored with Mr. Ahmed until he got the paperwork completed to effect a transfer of the vehicle to the Mr. Ahmed’s sister. Mr. Rage had gone along with this out of a sense of family obligation.

[58] According to Mr. Rage, he never had a set of keys for the car. It was towed to the underground parking lot and left there (although it had to be moved once because it was initially put in the wrong space). Mr. Rage was unable to identify the registered owner of the Toyota or who he was transferring it to, despite his claim that he was storing vehicle while he processed the paperwork for the transfer.

[59] The Toyota Corolla was black. Because Mr. Rage did not have keys for the vehicle, he claims that he never accessed the vehicle. On 27 October 2011, Mr. Rage acknowledges having met Mr. Ahmed at his building. He says that Mr. Ahmed checked something in the Toyota vehicle then left. Mr. Rage walked to the car and walked back but did not go into the vehicle. The white bag, presumably the one which the officers saw, contained bread that had been purchased for Mr. Rage by Mr. Ahmed.

[60] Mr. Rage also recalls meeting Mr. Ahmed on 5 October 2011. In fact, he acknowledges that he saw Mr. Ahmed twice that day. He explained that in July 2011 he had purchased a Yamaha motorcycle for Mr. Ahmed. He had purchased the motorcycle through his employer for $2,500. Mr. Ahmed had not paid him. At the first meeting on 5 October, Mr. Rage expected Mr. Ahmed to pay him back either the full amount or a large portion of the $2,500 that was owed. Mr. Rage says that Mr. Ahmed wanted to give him $100. When Mr. Rage told his cousin that that did not cut it, Mr. Ahmed told him to come back later. Mr. Ahmed said he would get Mr. Rage his money. Mr. Rage, who had another cousin with him that day, went off to get food. He then got a call from Mr. Ahmed. The second time they met was at the Petro Canada gas station at Progress and Markham Road. Asked about that encounter, Mr. Rage explained that normally you would shake hands and do a shoulder tap but because he was sitting in his vehicle he shook Mr. Ahmed’s hand. Mr. Ahmed did not have any money for him. He said it hadn’t worked out.

[61] On 10 November 2011 Mr. Rage says that he met with Mr. Ahmed because Mr. Ahmed had asked to meet with him and said he had a lump sum of money for him. Mr. Rage did not want Mr. Ahmed to come by the apartment and drop the money off because his girlfriend was there.

[62] Mr. Rage claims that he had bought cocaine from Mr. Ahmed (as opposed to Mr. Ahmed buying from him) but says he did not do so regularly. He thought that his cousin was a small time dealer selling marijuana and cocaine. He says that he would never have allowed Mr. Ahmed to store the Toyota at 10 Gordonridge Place if he had known that Mr. Ahmed was using it to store his stash of cocaine.

[63] Asked to explain his use of rental vehicles, Mr. Rage said that it was necessary for him to be seen to be driving newer vehicles to instill confidence in the people he dealt with in his job. He was able to rent cars on good terms because of his prior work history in the car rental business. He acknowledged that the blue Infiniti that he had been seen in had been rented from National from 11 September to 8 October 2011 for $863. It was preferable to rent cars on a as needed basis than incur long term liability on a lease.

[64] The apparatus considered by the police to be a cocaine press was, in fact, the product of welding classes that he was taking.

[65] Mr. Rage acknowledged that the cocaine found in the jeans pocket in his apartment and the marijuana was for his personal use. He claims that he used cocaine to help him concentrate on his school work (he was taking part-time courses). He was using 2 to 3 grams per week.

[66] Asked about the money found in his apartment - $3,850 in the top dresser – Mr. Rage explained that this was money that he had earned in cash from flipping cars. He was trying to save at least $4,500 so that he could get a car of his own. He denies that any of the money represents the proceeds of selling drugs. He had $1,760 on him when he was arrested. $1,600 of that had been given to him by Mr. Ahmed a little earlier to pay back to Dixon Auto Centre.

[67] Mr. Ahmed often visited Mr. Rage’s apartment and had a key to it.

Opinion Evidence

[68] Detective Dan Hutchins provided opinion evidence on usage patterns of crack and powder cocaine, values associated with cocaine, paraphernalia and their association with cocaine, modus operandi and use of rental vehicles, and, production of crack cocaine. Det. Hutchins testified that the 252.38 grams found in the Toyota Corolla was a larger quantity of powder that would generally not be seen on a street level purchaser. On a per ounce valuation, the street value of the amount seized would be between $11,430 and $14,080. Det. Hutchins expressed the opinion that this amount of drugs would be more commonly found with a mid or high level dealer.

[69] A cocaine press is a tool used to compress cocaine into brick form. Presses are home made. There is no uniform style. Det. Hutchins examined the items seized from Mr. Rage’s apartment which were believed to be part of a cocaine press. He acknowledged that he had not seen a similar device before. It lacked a compressor or stand. He surmised that it might be something which someone at more of a street level would use. The scales found in the apartment would be consistent with trafficking. However, Det. Hutchins conceded that such scales could also be used for cooking. Similarly, although cell phones are often associated with drug dealing, Det. Hutchins acknowledged that cell phones are now ubiquitous. The use of rental vehicles, however, is also another indication of drug dealing to minimize the chances of detection. Det. Hutchins acknowledged that the quantities of cocaine found in the jeans in the apartment could be consistent with personal use.

Discussion

[70] Mr. Rage is presumed innocent of the charges against him. This presumption remains with him unless and until the Crown proves his guilt on each count charged beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts. Mr. Rage was not required to testify or call any evidence. Nor is he required to explain anything.

[71] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. It is not enough for me to believe that Mr. Rage is probably or likely guilty. But proof beyond a reasonable doubt does not mean proof to an absolute certainty. The standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognise that I must consider all of the evidence and be sure that the accused committed each offence before I can be satisfied beyond a reasonable doubt of his guilt.

[72] In a case such as this one, where the accused has chosen to testify, the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-758 are engaged when determining whether the Crown has proven Mr. Rage’s guilt beyond a reasonable doubt. First, if I believe the testimony of Mr. Rage that he did not commit the offences with which he is charged, I must find him not guilty. Second, even if I do not believe the testimony of Mr. Rage that he did not commit these offences, if his testimony leaves me with a reasonable doubt of his guilt regarding any of these offences, I must find him not guilty of those offences. Third, even if the testimony of Mr. Rage does not leave me with any reasonable doubt as to his guilt regarding of any of the alleged offences, I may only find him guilty of any count only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt on that count.

[73] Because it is acknowledged that the amount of cocaine located in the Toyota was consistent with trafficking, the main issues to be decided are whether Mr. Rage supplied cocaine to Mr. Ahmed on 5 October 2011, 27 October 2011 and 10 November 2011 and whether Mr. Rage possessed the cocaine located in the Toyota Corolla.

[74] I do not believe Mr. Rage. I did not find him to be a credible witness. I will explain why.

[75] I do not accept that the reason the Toyota was parked at 10 Gordonridge Place was because Mr. Rage was storing it for his cousin while he was doing the paperwork to effect a transfer of the vehicle. There may have been paperwork that needed to be done. But that is not the main reason the car was there. In fact, it had sat there for a number of months despite the fact that Mr. Rage was in the car dealer business. When asked about details of who owned the vehicle and who it was to be transferred to Mr. Rage’s answers were vague.

[76] Nor do I believe that the two pieces of welded metal found in Mr. Rage’s apartment were there as souvenirs of his welding class. The press piece fit almost precisely into the frame. Although the external welds were crude and the press appears to have been incomplete, there is no other reasonable explanation for the presence of these items.

[77] I do not believe that the two digital scales in found in the apartment, one in the kitchen and one in the living room, were there for culinary purposes only (even if, as was suggested, one of the scales was not working).

[78] Mr. Rage says that Mr. Ahmed owed him $2,500 for a motorcycle. He implied that he had used his employer’s resources to purchase the motorcycle and that he (Mr. Rage) owed $2,500 to his employer. There was no evidence from the employer or other evidence corroborating this. Mr. Rage admitted meeting with Mr. Ahmed twice on 5 October 2011 but says he did so just so Mr. Ahmed could tell him, twice, that he did not have the money. It makes no sense.

[79] And despite the fact that he had $3,850 in his apartment, he claimed that his employer had effectively fronted him $2,500 to buy the motorcycle for Mr. Ahmed. Despite his protestations that he needed money from Mr. Ahmed in cash to pay the $2,500 to his “boss”, he had significantly more than that amount sitting in his dresser in his apartment.

[80] I also reject the evidence of Mr. Rage that he rented vehicles, at not inconsiderable personal expense (trade discounts notwithstanding), to give him credibility in carrying out the duties of his job, for which his base salary was at or close to minimum wage.

[81] The only point of significance arising from the evidence of Mr. Rage which causes reasonable doubt on my part as to the guilt of Mr. Rage on one of the charges laid relates to the trafficking marijuana charge. Mr. Rage says he had marijuana in his apartment for personal use. No expert evidence was offered to suggest that the amount of marijuana seized was consistent with possession for the purpose of trafficking. In the absence of any challenge to Mr. Rage’s evidence on this charge, the possession for the purpose of trafficking charge cannot be proved.

[82] With respect to the cocaine in the trunk of the Toyota, the car was parked in a spot registered to Mr. Rage and had plates belonging to Mr. Rage on the vehicle.

[83] There were, however, as defence counsel emphasised in his submissions, some discrepancies in the police evidence. While the Toyota Corolla was identified by its VIN number and the number on the licence plates attached to it, some officers reported it as green or dark green, whereas others reported it as black. A number of officers also said that it was dusty. It is now accepted that the Toyota was, in fact, black. Despite the discrepancy concerning the vehicle’s exact colour, I have no doubt that the Toyota which the officers observed was the same Toyota that Mr. Rage acknowledges he was storing.

[84] And notwithstanding the protestations by Mr. Rage that he did not have access to the Toyota, I accept the observations of the officers who saw him open the front passenger door of the Toyota and the trunk. I find it improbable in the extreme that the car was parked in Mr. Rage’s spot for a number of months without him having a set of keys, or indeed any means of accessing the car.

[85] When the vehicle was searched on 4 November 2011, there was nothing in the trunk other than a spare tire and cocaine. On the occasions that Mr. Rage was seen opening the trunk and removing something with his right hand from the trunk and placing it in his right pocket, the only reasonable conclusion as to what he was doing was that he was transferring cocaine stored in the trunk to his pocket.

[86] Although Mr. Rage acknowledges that he purchased cocaine from Mr. Ahmed, he claims that Mr. Ahmed stored cocaine in the Toyota Corolla without telling him (Mr. Rage) that drugs were there. Given my acceptance of the evidence of the police witnesses who saw Mr. Rage go to the car and open the trunk, it is inconceivable that he did not know that drugs were stashed in the Toyota.

[87] Minutes before each of the transactions involving the undercover officer Mr. Ahmed met with Mr. Rage. Each of those meetings was brief. To the extent they could be observed, the physical actions of Mr. Ahmed and Mr. Rage were consistent with the conduct of drug transactions.

[88] It follows that I do not accept Mr. Rage’s evidence that the reason that he had to meet Mr. Ahmed in parking lots to get money from Mr. Ahmed was because he did not want Mr. Ahmed coming to his apartment (for which Mr. Ahmed had a key), because his girlfriend was there. Instead, I find that he met with Mr. Ahmed to supply him with cocaine or to receive payment for cocaine which he had supplied, or both.

[89] On 5 October 2011, Mr. Ahmed set up a meeting time with the undercover officer to do the deal. He met with Mr. Rage shortly before that meeting. I have no doubt that the purpose of that meeting was for Mr. Rage to supply Mr. Ahmed with drugs. After completing the drug transaction with the undercover officer, Mr. Ahmed again met with Mr. Rage. The only reasonable conclusion to draw, having regard to all of the evidence, is that this second meeting was for the purposes of Mr. Ahmed giving Mr. Rage money from the drug transaction that he had just concluded.

[90] On 27 October 2011, Mr. Ahmed met with Mr. Rage just before doing a deal with the undercover officer. At that time, I find that Mr. Rage provided Mr. Ahmed with drugs and that Mr. Ahmed provided Mr. Rage with money (possibly in the bag with black and white writing) in exchange for the drugs. Just after this exchange between Mr. Ahmed and Mr. Rage, Mr. Ahmed called the undercover officer and advised that he was on his way. Mr. Ahmed then sold the undercover officer cocaine supplied by Mr. Rage.

[91] On 10 November 2011, Mr. Rage was seen accessing the trunk of the Toyota Corolla. He was then seen pulling up to a location, close to where Mr. Ahmed was meeting with the undercover officer. Mr. Ahmed got into Mr. Rage’s vehicle. Within less than fifteen minutes of the encounter between Mr. Rage and Mr. Ahmed, Mr. Ahmed supplied the undercover officer with 85 grams of crack cocaine. I find that Mr. Rage was the supplier of that cocaine.

Conclusion

[92] The three meetings on three separate dates between Mr. Ahmed and Mr. Rage correspond precisely with the undercover officer’s orders for drugs. To suggest this is a random coincidence beggars belief. Shortly after the third transaction, when police executed a warrant on the Toyota that Mr. Rage had been seen accessing on 27 October and 10 November prior to the deals with the undercover officers, it was found to contain a substantial quantity of cocaine. The correlation between these various circumstances leads to the irresistible conclusion that Mr. Rage was supplying Mr. Ahmed with cocaine. There is no other reasonable inference which can be drawn from these facts and circumstances when taken together.

[93] I am left in no doubt at all that Mr. Rage supplied cocaine to Mr. Ahmed on 5 October, 27 October and 10 November 2011. I have no doubt at all that Mr. Rage possessed the cocaine which was located in the Toyota Corolla. I accept that the cocaine found in Mr. Rage’s jeans may have been for personal use. This is really of limited consequence given the finding I have made with respect to the substantial quantity of cocaine found at the same time in the vehicle. I accept, too, that the marijuana found in the apartment may well have been for personal use and, accordingly, find that on the marijuana charge, the Crown has not established possession by Mr. Rage for the purposes of trafficking, but, given Mr. Rage’s acknowledgement, the included offence of simple possession of marijuana has been established.

[94] By reason of the foregoing, I find Abdullahi Abti Rage guilty on counts 5, 7, 9 and 11 of the indictment and, in respect of count 12 of the indictment, I find Mr. Rage guilty of simple possession of cannabis (marijuana).

Graeme Mew J.

Judgment handed down: 29 April 2016

**ONTARIO SUPERIOR COURT OF JUSTICE** **BETWEEN:** HER MAJESTY THE QUEEN – and – ABDULLAHI ABTI RAGE **REASONS FOR JUDGMENT** Mew J. **Judgment date:** 29 April 2016