Court File and Parties

Court File No.: CR-15-G54848 Date: 2019/04/29 Ontario Superior Court of Justice

B E T W E E N: Her Majesty the Queen – and – Mark Sealy-Ward

Counsel: Giuseppe Cipriano for Her Majesty the Queen Eric Granger for Mark Sealy-Ward

Heard in Ottawa: October 9, 10 and 11, 2018, February 28 and March 1, 2019

Reasons for Decision

O’Bonsawin J.

Background

[1] Mr. Sealy-Ward was charged with the following counts:

• #1 storing a firearm in a careless manner contrary to s. 86(3) of the Criminal Code, R.S.C., 1985 c. C-46 (“Code”);
• #2 storing ammunition in a careless manner contrary to s. 86(3) of the Code;
• #3 possession of a weapon for a purpose dangerous to the public peace contrary to s. 88(2) of the Code;
• #4 possession of a prohibited firearm contrary to s. 91(3) of the Code;
• #5 possession of a prohibited firearm contrary to s. 92(3) of the Code;
• #6 occupying a motor vehicle knowing there was a prohibited firearm in the motor vehicle contrary to s. 94(2) of the Code;
• #7 possession of an unloaded prohibited firearm together with accessible ammunition capable of being discharged contrary to s. 95(2) of the Code;
• #8 possession of a firearm knowing that the serial number had been altered, defaced or removed contrary to s. 108(2) of the Code;
• #9 possession of a Schedule I substance (cocaine) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);
• #10 possession of a Schedule I substance (methylenedioxyamphetamine (“MDA”) for the purpose of trafficking contrary to s. 5(2) of the CDSA; and
• #11 possession of a Schedule II substance (marijuana) for the purpose of trafficking contrary to s. 5(2) of the CDSA.

[2] On February 15, 2019, I dismissed Mr. Sealy-Ward’s Motion to exclude evidence.

[3] In total, this trial proceeded over five days. The Crown called five witnesses to testify: Cst. Tessier, Cst. Lachance, Ms. Anne-Marie Kora Gado, Sgt. Fenton and Sgt. Hill. Mr. Sealy-Ward did not testify and the Defence did not call any evidence.

[4] The parties provided me with the following facts that were admitted to by both parties:

• the identification, date and jurisdiction of Mr. Sealy-Ward;
• that the samples sent to Health Canada are what the certificate represents them to be;
• that the firearm is a prohibited weapon;
• continuity of the items seized – with the qualification that the alleged drugs were mixed into respective bulk samples;
• that the photographs accurately depict the items seized; and
• there is no evidence that the seized ammunition is capable of being discharged from the seized firearm.

[5] In my Reasons for Decision with regards to Mr. Sealy-Ward’s Motion to exclude evidence (R. v. Sealy-Ward, 2019 ONSC 1080), I made a finding of the evidence that I accepted of both Cst. Tessier and Cst. Lachance. Since I have already dealt with the arrest and events after the arrest in my prior decision on the Motion, I will not review that part of the evidence a second time.

Evidence

[6] The following is the evidence that I accept.

[7] On December 2, 2015, Cst. Tessier and Cst. Lachance were on patrol as neighbourhood officers in the south end of Ottawa. Just before 7:30 p.m., both officers were conducting a door knock on an unrelated call on Siren Private, near Lorry Greenberg Drive, in the City of Ottawa.

[8] While conducting the door knock, both officers observed a BMW parked at the bend of Siren Private. According to police, upon seeing the officers, a black male, later identified as Mr. Sealy-Ward, exited the front driver’s side area of the vehicle and entered the front passenger seat. A second male, later identified as Brian Enache, was observed exiting the front passenger side and entering the driver seat of the BMW. Essentially, both switched positions.

[9] The officers found this change in seating suspicious. According to Cst. Lachance, he thought this change in seating was a reaction to being observed by the police. Cst. Lachance thought Mr. Sealy-Ward might be a suspended driver and upon observing police presence decided to change seats.

[10] As the officers made their way back to their vehicle, the BMW departed and drove southbound on Siren Private.

[11] Cst. Tessier and Cst. Lachance departed eastbound onto Kimito Private and then turned onto Lorry Greenberg Drive heading west. They later observed the BMW heading west on Lorry Greenberg Drive and they were located approximately eight to ten car lengths behind the BMW. Cst. Tessier was driving and Cst. Lachance was the passenger.

[12] Cst. Lachance started to query the license plate of the BMW. He testified that this is a common practice for him. As he conducted his queries, both he and Cst. Tessier observed the BMW make a U-turn and then head south into the parking lot of 268 Lorry Greenberg Drive.

[13] They thought this was an illegal U-turn and decided to conduct a traffic stop at 7:36 p.m. The officers parked their vehicle approximately one car length behind the BMW. Cst. Tessier approached the driver’s side and Cst. Lachance approached the passenger side. It was a matter of seconds between 7:36 p.m. and the time they arrived at the BMW.

[14] According to Cst. Lachance, the reason for the stop was an accumulation of factors: the suspicious change in seats between Mr. Sealy-Ward and Mr. Enache, the time of day, the area (known for crime) and the illegal U-turn. However, he was clear in his evidence that it was the U-turn which was the driving point behind the stop. Prior to the U-turn, the officers were unlikely to have stopped the vehicle.

[15] Both officers smelled a strong odour of marijuana coming from the vehicle. Cst. Tessier testified he smelled an odour of both burnt and vegetative marijuana. Cst. Lachance testified he observed a strong odour of vegetative marijuana. Both officers testified that they had experience with the odour of marijuana as police officers and have come across it numerous times.

[16] Cst. Tessier asked the driver for his documents. Cst. Lachance testified that his intention upon approaching the passenger was to warn him about driving while suspended. He indicated that he often stopped vehicles for possible Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) infractions and issued warnings.

[17] Cst. Lachance asked Mr. Sealy-Ward to lower the window. As he did so, Cst. Lachance noticed that the odour of marijuana intensified. Cst. Lachance also noticed a blue backpack between Mr. Sealy-Ward’s legs in the foot well of the car. Cst. Lachance asked Mr. Sealy-Ward if there was any marijuana in the vehicle. Mr. Sealy-Ward denied that there was marijuana and asked the officer the reason for the stop. Cst. Lachance again asked if there was marijuana in the vehicle to which he did not receive a response.

[18] Given the overwhelming odour, Cst. Lachance believed that marijuana was present in the vehicle. Consequently, he decided to arrest the occupants for possession of marijuana. At 7:39 p.m., Cst. Lachance radioed dispatch from the radio on his left shoulder to advise that they had arrested three men for possession of drugs. Cst. Lachance testified: “I tell them all arrested for Schedule II or I said marijuana”. All occupants were ordered out of the vehicle. They were immediately told the reason for the arrest and placed under arrest.

[19] When Mr. Sealy-Ward got out of the passenger door of the BMW, Cst. Lachance took custody of him. As was his practice and as he was trained, Cst. Lachance asked Mr. Sealy-Ward if he was carrying any drugs, needles, or weapons prior to the search of his person for officer safety reasons. Cst. Lachance noticed a clear plastic bag, like a sandwich bag, partially sticking out of Mr. Sealy-Ward’s left jacket pocket. Cst. Lachance asked Mr. Sealy-Ward if the bag contained marijuana; Mr. Sealy-Ward moved to reach into his pocket. Since Cst. Lachance had not yet searched Mr. Sealy-Ward, he grabbed Mr. Sealy-Ward’s hand for safety reasons and pulled the plastic bag out of the pocket. It contained little white rocks and powder that Cst. Lachance suspected to be cocaine or crack cocaine. As a result, Cst. Lachance arrested him for possession of cocaine. Mr. Sealy-Ward was then handcuffed and searched incident to arrest.

[20] Mr. Sealy-Ward and the other two occupants of the BMW were then seated on the curb while the police officers waited for back-up to arrive. Ordinarily, the detained individuals would be handcuffed, searched and placed in the rear of a police vehicle where they would be cautioned and read their rights to counsel. However, in this case, there were only two officers, two sets of handcuffs and one police vehicle. According to the police officers, there was no safe place for Mr. Sealy-Ward or others to wait until back-up arrived.

[21] While awaiting back-up, Cst. Lachance returned to the vehicle and searched the blue backpack that was located between Mr. Sealy-Ward’s legs. The following items were located within the backpack:

• 2 clear plastic bags of marijuana (approximately 1 lb each)
• a black digital scale with marijuana residue on it
• multiple individual dime bags (some red, some clear and some with a black design on clear plastic), typically used to package and sell marijuana by the gram or less
• a box of plastic zip-lock bags
• elastics
• a plastic strawberry yoghurt cup with marijuana residue
• a green and flashy coloured journal book with a debt list on the first page
• 3 gold teeth in a plastic bag
• 3 zip-lock bags with small amounts of marijuana in each.

[22] As a result of this discovery, Cst. Lachance advised the three males that they were under arrest for possession for the purpose of trafficking.

[23] The smell of marijuana still persisted in the BMW. As a result, Cst. Lachance searched the remainder of the car including the trunk. Upon searching the trunk, Cst. Lachance located a black cloth grocery bag and a blue duffle bag.

[24] The following items were inside of the cloth grocery bag:

• a clear zip-lock bag with 8 red rifle shells along with 1 rifle bullet;
• a sawed off break action single shotgun with some army green camouflage tape on the handle and the barrel—the serial number had been scratched off;
• a black balaclava; and
• a white plastic grocery bag.

[25] The following items were located within the blue duffle bag:

• 2 sealed zip-lock bags containing marijuana (approximately 1 lb each);
• a black hoodie;
• 2 pairs of red shorts;
• white/black socks;
• a grey muscle shirt;
• checkered boxers;
• 3 black homemade slings; and
• a black bag that contained a small dime bag of what appeared to be crack cocaine along with 2 small brown balls of what appeared to be heroine.

[26] A machete was also located in the trunk.

[27] As a result, Cst. Lachance advised all three men that they were also under arrest for possession of a firearm and possession of a weapon for a dangerous purpose.

[28] I will summarize Ms. Kora Gado’s evidence as follows:

• She has known Mr. Sealy-Ward for five and a half years. They have a four year old son together. However, they are not currently in a relationship. Mr. Sealy-Ward has access to their son from Friday after school until Sunday at 7:00 p.m. She picks up their son at the property owned by Mr. Sealy-Ward’s wife. Ms. Kora Gado normally sees his wife when she picks up their son.
• In 2015, she had a Honda Civic registered in her name. In addition, she also had a BMW registered in her name. She drove the BMW three times. The last time she drove the car was either in August or September 2015. Mr. Sealy-Ward and his friends drove his BMW which was Mr. Sealy-Ward’s vehicle.
• When Ms. Kora Gado drove the BMW, she only left her purse with her wallet or some diapers and wipes in the vehicle.
• Although the car was registered in her name, Mr. Sealy-Ward purchased the car. He did not have the credit to get the financing and she assisted him with the purchase. He made the cash down payment.
• Ms. Kora Gado and Mr. Sealy-Ward used to be close friends. After August or September, they stopped talking; he only called to check in on their son.
• During cross-examination, Ms. Kora Gado was asked if she stopped talking to Mr. Sealy-Ward because he was not paying child support. She responded that she had never asked him for child support. She had gone back to work in September 2015 and was no longer on Employment Insurance benefits. Therefore, she was able to support herself and her son.
• Mr. Sealy-Ward started a file through the family court system. Her lawyer is now seeking child support on her behalf. When she sees Mr. Sealy-Ward and his wife, she is always respectful with them.

[29] I will summarize Sgt. Fenton’s evidence as follows:

• At the time of Mr. Sealy-Ward’s arrest, Sgt. Fenton was with the Guns and Gangs Unit of the Ottawa Police Service (“Guns and Gangs”). He has been with this service for seventeen years.
• On December 2, 2015, Sgt. Fenton was on duty. Another sergeant of Guns and Gangs received a call from patrol about a traffic stop involving a service firearm; Sgt. Fenton was then assigned as lead investigator.
• Sgt. Fenton remained at the police station and did not attend the scene. He provided instructions to the police officers at the scene to bring the items seized and those arrested to the police station. Drugs, a sawed off shotgun in three pieces, cash and property such as clothing and two cell phones were brought to the police station. More specifically, there were eight different bags of marijuana containing individual amounts of 206g, 253.75g, 253.3g, 253.95g, 36.3g, 6.45g, 22.1g and 16.9g. There were also two bags of cocaine in the individual amounts of 14.35g, and one bag believed to be heroine in the amount of 3.05g.
• The items seized were brought to the police station in a backpack, a blue duffle bag and a cloth grocery bag. The items were not tagged. Both bags were closed when they were brought into the police station. All items were brought in by Cst. Tessier and Cst. Lachance.
• The cloth grocery bag contained the sawed off shot gun in three pieces, ammunition and a balaclava. Sgt. Fenton visually inspected the firearm.
• In the backpack, there was a wallet that contained various cards, papers and currency. The Identification Photo Card was in the name of Mr. Sealy-Ward.
• Sgt. Fenton also located a padlock in the blue duffle bag and he was able to open it with the combination sticker that he located in Mr. Sealy-Ward’s wallet.
• When Sgt. Fenton weighed the drugs, all quantities were weighed in the bag. When he weighed the marijuana, he removed all of the marijuana from the eight individual bags and put the quantitative sum of them on the scale for a cumulative total of 902.2g. Afterwards, he then took a sample of 1.2g of the marijuana. He conceded that he cannot confirm from which of the eight bags the sample originated from. The results indicated positive for marijuana. Sgt. Fenton used the same process for the two bags of cocaine. The total weight was 16.55g. From that quantity, he took a sample of 1.25g. He could not confirm if the 1.25g sample came from one original bag or from a combination of both bags. The result received tested positive for cocaine.
• When Sgt. Fenton weighed the bulk of the drugs and took samples, he looked at the three different types of drugs: marijuana, cocaine and heroin. They were all different in appearance. Due to the large quantity, Sgt. Fenton grouped together each of the following: (1) all marijuana similar in appearance; (2) all cocaine; and (3) all heroin. He then sent the samples to Health Canada for testing.
• In order to use the sawed off shotgun that was in three pieces, one would have to assemble it. Sgt. Fenton was able to assemble it and an exhibit photo was provided to depict the firearm in one piece.

[30] Sgt. Hill was qualified as an expert in marijuana, MDA and cocaine for the purposes of trafficking. He is also an expert in the use of these drugs, as well as pricing and proceeds of these substances.

[31] I summarize Sgt. Hill’s evidence as follows:

• He started with the Ottawa Police Service Drug Unit in 2009. Sgt. Hill became involved in this matter as an expert. He performed a file review in order to create an expert report regarding drug trafficking.
• In his expert report, Sgt. Hill listed the material seized as follows:
  • 16.55g of crack cocaine
  • 902.9g of marijuana
  • 12.6g of MDA
  • Samsung cell phone
  • $490 in Canadian currency
  • debt list
  • sawed off shotgun
  • 8 rounds of 410 gauge ammunition
  • packaging material
  • digital scale.
• The marijuana seized of 902g equals approximately two pounds. On the street, the price for a pound ranges depending on the season from $1,000-$2,800. A habitual user of marijuana normally has in his/her possession an ounce or maybe a little more usually to sustain a week or two of consumption. With regards to the daily use of a habitual user of cocaine, there is a scale continuum of use, very low end and often an extreme end. Sgt. Hill quotes the high end binge use at a worst case scenario of 3.5g of crack cocaine used per day. A 3.5g ball price ranges from $180-$300.
• In terms of appearance, cocaine can appear in different forms. Typically at the street level, he sees powdered cocaine heavily compressed and sometimes confused for crack cocaine. The latter is a hard rock type substance that can either be really white or yellow tinged depending on the cooking method or what is added to it. When imported, it can be liquid.
• MDA is a synthetic psychedelic of the amphetamine class of drugs. Although MDA is chemically similar to methylenedioxymethamphetamine (“MDMA”), it is often held out by traffickers to be MDMA. MDA has a higher degree of toxicity, a longer lasting effect on the user and has a greater visual hallucination than what is commonly experienced with MDMA.
• MDA is a drug sold and consumed by the same customer base as MDMA. They are considered party scene drugs not used daily since the after affects are hard on the body. Heavy users may only use it two to three days in a week and then stop for a few weeks. The price for MDA is very similar to that for MDMA. In the powder or raw form, the price is higher “today” and it sells for $80-$100 per gram. MDA can also be sold in pill form.
• In Sgt. Hill’s opinion, the drugs seized in this case were for purposes of trafficking. There are a few reasons he arrived at this conclusion. The first point of consideration that stands out is the quantity of the drugs seized. In his experience, this quantity is not a quantity that he would see with a user. The quantity does not fit the consumption patterns of crack cocaine users. In addition, there was no notation associated with consumption. In his experience, he would normally see a crack glass, a crack pipe, a coke can with holes fashioned as a pipe, a shell of an inhaler (a device typically used to release medication to those with asthma) that can be used as a pipe or a push pipe with a brillo pad used as a filter. There was also the presence of large currency in twenty dollar bills. Cash money is the primary currency used in the purchase of drugs. The significance of the twenty dollar bills is that he normally sees an abundance of them since they are a common unit for crack cocaine. In his opinion, the $490 seized represents currency derived from the sale of drugs. Sgt. Hill did not consider the cellular phones or the weight scales as factors. With regards to the packaging material seized, he considered it but did not give it much weight because often, this packaging material is not required for crack cocaine. The dealer normally breaks off a chunk and hands it to user. Of significance, however, was the debt list. The trafficker, especially at the street level, uses this method to record and track outstanding money owed by customers. For example, a trafficker will often give a purchaser a credit for an off the cuff transaction. The debt list is a simple accounting of who owes what and a list of what the trafficker owes at the back end. The debt list seized in this matter contained thirteen names followed by a numerical value. The majority of numerical values were either “10” or “20” which are common street level units of sale for crack cocaine. In Sgt. Hill’s opinion, this debt list is likely a crack list. Lastly, he took into consideration the seized sawed off .410 shotgun with ammunition and machete. The drug sub-culture has changed and is currently far more competitive. Sgt. Hill has seen more violence even since he started on the Drug Unit in 2009. Having a weapon is an almost essential component of a drug trafficker’s trade and is used to control his/her geographical area, other traffickers taking his clientele and drug-related robberies.
• In Sgt. Hill’s opinion, it is not typical for a consumer to possess the total quantity of marijuana seized in this case, i.e., slightly less than one kilogram. The issue of the weights of the marijuana found in the four freezer size zip-lock bags—206g, 253.75g, 253.3g and 253.95g—are all consistent with a half-pound of marijuana common unit of wholesale level or mid-wholesale level. This packaging is a common method of packaging for half-pound sales.
• In Sgt. Hill’s opinion, the other four bags of marijuana weighing 36.5g, 6.45g, 22.1g and 16.9g are common units of sale referred to on street as a quarter ounce.
• In Sgt. Hill’s opinion, new unused dime bag packaging is not something a user uses. He/she will purchase the quantity he/she requires. The new unused bags can be used to package crack occasionally but it is not frequent. They are used for smaller purchases of marijuana, such as purchases of 1g, as well as for purchases of MDA.
• In Sgt. Hill’s opinion, the MDA seized was for the purposes of trafficking. He comes to this conclusion because of the bulk quantity. He estimates the 12.6g of MDA contained 78 to 157 individual doses.
• In terms of dealing with three different types of drugs, this is what he and others call poly-trafficking. A drug trafficker that offers different substances that are often complementary to each other. For example, when using the crack cocaine and the marijuana together, the crack cocaine is a stimulant that gets the user edgy and up and then use of marijuana brings the user down. It makes sense to also offer another product to consume such as the MDA. This drug is not one Sgt. Hill would expect a crack user to consume with regularity. MDA is a substance at the other end of the user base.
• When Sgt. Hill seized drugs as a member of the Drug Unit, he sent them out for analysis. When he was asked how he determined the quantity to be sent out for analysis, he responded that the determination has changed with the introduction of fentanyl. Currently the maximum quantity of a powdered substance that may be sent to Health Canada is less than 1g/100-200 mg maximum of any powder. Typically, Sgt. Hill would send 1-2g of marijuana to Health Canada for analysis.
• During cross-examination, Sgt. Hill was asked about a user getting a better price when purchasing drugs. Some users buy in larger quantities if they have the cash to do so. Sgt. Hill responded that in fifteen years as a police officer, he can only think of two cases where a user bought large bulk quantities in circumstances where he came into a large quantity of currency, however, that is outside the extreme range of purchasing.
• When put to Sgt. Hill that a user does not necessarily bring paraphernalia to purchase drugs, he responded that in his experience, it is very common for a crack cocaine user to have paraphernalia on him/her even if not using.
• In his experience, Sgt. Hill has seen traffickers that are users themselves. They traffic to sustain their addiction. However, this is for a very short duration because the addiction takes control and they end up by consuming the drugs they were given to sell.
• Sgt. Hill has seen a lot of marijuana users use scales. With other substances, he does not see that as much.
• Crack cocaine cannot be buffed because if a trafficker buffs it and is not using white powder, customers will be able to observe that it was buffed or is of poor quality.

[32] Health Canada Certificates were submitted as exhibits and confirmed that the samples sent out for analysis were: cocaine, MDA, methylenedioxyphenylpropionamide (MMDPPA) and cannabis marijuana.

Analysis

[33] Section 2 of the CDSA adopts the definition of “possession” in s. 4(3) of the Code, and reads as follows:

4(3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly i. has it in the actual possession or custody of another person, or ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[34] Section 4(3) of the Code creates three types of possession:

• 4(3)(a) – personal possession;
• 4(3)(a)(i) or (ii) – constructive possession; and
• 4(3)(b) – joint possession.

[35] Each type of possession requires some level of knowledge and control over the item beyond merely passive acquiescence. On a charge of personal possession, the Supreme Court of Canada determined that “the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16).

[36] Joint possession occurs where there is knowledge, consent and a measure of control by the person considered to be in possession (R. v. Pham (2005), 77 O.R. (3d) 401 (C.A.), at para. 16).

[37] In Morelli, the Supreme Court explained constructive possession at para. 16 as follows:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “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” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

[38] In this matter, the Crown must prove all elements of possession beyond a reasonable doubt, either by direct evidence, circumstantial evidence or a combination of the two.

[39] I will summarize the relevant case law. Mr. Sealy-Ward’s case contains circumstantial evidence. The Supreme Court of Canada discussed circumstantial evidence in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56, when it adopted the governing principle summarized by the Alberta Court of Appeal in R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138:

“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” … a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.

[40] In R. v. Morris, 2017 ONSC 835, 373 C.R.R. (2d) 170, three accused were charged with a five count indictment with various drug trafficking and proceeds of crime offences. Approximately 1.4 kg of cocaine and 200 g of marijuana were seized from an apartment and residence of one of the accused. A number of digital scales and a quantity of phenacetin were seized. At another condo, approximately 15.6 kg of cocaine and two large buckets of phenacetin were seized. Code J. reviewed the steps in circumstantial cases. He stated as follows:

[T]he inference of guilt must be the only reasonable inference arising from the evidence…The first step in a circumstantial case, is to determine what primary facts have been proved. The second step is to determine what reasonable and non-speculative inferences flow from the primary facts (at paras. 103-104).

[41] In R. v. Wu, 2017 ONCA 620, the accused appealed his conviction for possession of MDMA, ketamine, and methamphetamine for the purpose of trafficking. The accused was arrested inside one of the largest methamphetamine production labs ever uncovered. The laboratory produced 12,000 pills per hour. The police seized 150 kg of drugs worth $12 million. The trial judge’s conclusion that the accused had knowledge and control over the drugs was supported by ample circumstantial evidence such as the use of his entire home for the production, and the presence of drugs and equipment in plain sight. The Ontario Court of Appeal stated:

It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

Further, when considering the reasonableness of the verdicts, and the inferences drawn by the trial judge, this court is entitled to consider that the appellant did not testify and did not adduce evidence to support any other reasonable inference consistent with his innocence. See R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.) (at paras. 15-16).

[42] R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal to S.C.C. dismissed, [2015] S.C.C.A. No. 478 (March 17, 2016), was an appeal of two accused from convictions for possession of heroin for the purpose of trafficking. The police responded to a tip of a drug trafficking transaction involving an individual and a motor vehicle. Bains drove a Honda owned by Pannu. Pannu drove a Honda owned by Bains. The police stopped and searched the vehicle driven by Bains and seized a bag from under the front passenger seat. Bains and Pannu were charged jointly with possession for the purpose of trafficking. They were convicted by a judge sitting with a jury. The Court of Appeal provided the following summary regarding constructive possession:

Constructive possession does not involve an accused having physical custody of a subject-matter. Constructive possession is established where an accused has the subject-matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession the Crown must prove beyond a reasonable doubt that an accused:

i. knows the character of the object; ii. knowingly puts or keeps the object in a place; and iii. intends to have the object in the place for his or her use or benefit or the use or benefit of some other person: Morelli, at para. 17.

As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To; and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container (at paras. 156-157).

[43] In Pham, drugs were found in plain view and in proximity of Ms. Pham’s possessions in an apartment that she shared with a roommate. Ms. Pham was not present when the drugs were seized. Her roommate was jointly charged with Ms. Pham. The roommate’s charges were later dismissed. Ms. Pham claimed that the seized drugs belonged to her roommate. The Court of Appeal summarized the law of constructive possession as follows:

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.).

In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 20 C.C.C. (3d) 440 (Ont. C.A.).

The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.), at p. 6:

There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, upheld the above passage as being sufficient evidence to infer knowledge.

The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In Re Chambers and the Queen, supra at 448, Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”. (at paras. 15-18).

[44] In its decision in Pham, the Court of Appeal also adopted McEachern J.’s statement in R. v. To, 1992 BCCA 16, 16 B.C.A.C. 223: “The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty” (at para. 30).

[45] In R. v. McIntosh, 2003 O.T.C. 246 (S.C.), the accused was driving a rental vehicle rented by another person when he was pulled over by police. In their search of the vehicle, the police seized a loaded handgun, ammunition and 50g of crack cocaine concealed in a cavity behind the glove compartment. One of the passengers in the vehicle at the time had a criminal record including possession of cocaine for the purpose of trafficking and unauthorized possession of a loaded firearm in a vehicle. Hill J. commented on the possession of valuable illegal items as follows at paras. 45-46:

The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C. C.A.) at 121 (aff’d. on appeal (1971), 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

The quantity of crack cocaine is clearly for the purpose of trafficking. The value of the illicit drug, thousands of dollars worth from retail sales, suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptacle concealing the asset.

[46] In R. v. Gagliardi (2005), 128 C.R.R. (2d) 317 (Ont. S.C.) at para. 44, Sproat J. cited McIntosh with approval when he discussed considering the improbability of a drug trafficker letting a valuable asset out of his/her control.

[47] With regards to inferences to be drawn from an accused’s failure to offer an explanation, the Supreme Court addressed this issue in R. v. Lepage, [1995] 1 S.C.R. 654, at para 29:

Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent’s failure to offer an explanation for the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to draw such an inference in any event. The following passage from R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.), at pp. 347-48, is on point:

No adverse inference can be drawn if there is no case to answer. A weak prosecution’s case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), “circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned”. That point, it seems to me, can only be the point where the prosecution's evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt. Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence. It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise. When linked in that fashion to the strength of the Crown’s case, the failure to testify is no different than the failure to call other defence evidence. . . . If the Crown’s case cries out for an explanation, an accused must be prepared to accept the adverse consequences of his decision to remain silent: R. v. Boss (1988), 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (C.A.), at p. 542 C.C.C., p. 42 C.R. But the failure to testify cannot be used as simply one of the circumstances from which the guilt of the accused can be inferred: R. v. Armstrong (1989), 52 C.C.C. (2d) 190 . . . As Doherty J. pointed out in R. v. Manchev, an unreported judgment of the Ontario High Court, August 23, 1990, the accused’s failure to testify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced.

[48] In R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501, at para. 45, the Court of Appeal reviewed the case law with regard to the division of responsibility between the Crown and the Defence. It noted that “[d]rawing an adverse inference against an accused in a criminal trial raises the danger of placing a burden of adducing evidence on the defence…It is for these reasons that “[a] trial judge should draw an inference in a criminal case from the failure of one of the parties to call a witness, only with the greatest of caution” [citations omitted].

[49] In R. v. Anderson-Wilson, 2010 ONSC 489, at para. 74, Hill J. provided a helpful list of considerations for weapons prosecutions:

(1) the physical proximity of the firearm to the accused (2) the degree of visibility of the firearm (3) the degree of communal use of a vehicle containing the firearm (4) the size, nature and number of weapons in a particular space (5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control. [Citations omitted.]

Position of the Parties

[50] The Crown submits that Mr. Sealy-Ward was in possession of the items seized from the BMW. Admittedly, there is no direct evidence, however, the external factors taken together lead to the reasonable inference of knowledge and control.

[51] The Defence argues that the Crown’s case against Mr. Sealy-Ward regarding possession of items in the backpack, the blue duffle bag and the cloth grocery bag is entirely circumstantial. None of the items were ever located in the personal possession of Mr. Sealy-Ward. The Crown has failed to prove that Mr. Sealy-Ward had knowledge and control of each of these items in order to prove guilt.

Findings Relating to the Evidence

[52] Whether an individual has something in his or her possession pursuant to s. 4(3) of the Code is a question of fact to be determined by the evidence based on inferences drawn in this case.

[53] I wish to begin by stating that overall, the Crown’s witnesses were not shaken during cross-examination. There were some minor inconsistencies between Cst. Tessier and Cst. Lachance regarding, for example, the smell of the marijuana. These inconsistencies do not lead me to question the police officers’ credibility. What is relevant in this matter is that there was an odour of marijuana which led to Mr. Sealy-Ward’s arrest.

[54] I agree with the Crown that the following are relevant factors to consider:

• the vehicle was owned by Mr. Sealy-Ward;
• Mr. Sealy-Ward had predominant control over the vehicle;
• as the “owner” of the vehicle, Mr. Sealy-Ward could control who came in and out of the vehicle, who drove it and what could be brought into the vehicle;
• Mr. Sealy-Ward was in care and control of the vehicle;
• Mr. Sealy-Ward, the initial driver of the BMW, switched seats with the passenger, Mr. Enache, upon seeing two uniformed police officers, which leads to an inference that he did not want to get caught;
• Mr. Sealy-Ward had drugs on his person and there was drug trafficking paraphernalia in the backpack between his legs;
• more marijuana packaged in zip-lock bags similar to the marijuana in the backpack was found in the blue duffle bag located by officers in the trunk next to the cloth grocery bag containing the sawed off shotgun;
• in the wallet with Mr. Sealy-Ward’s personal identification cards and located in the backpack was the combination that opened the padlock located in the blue duffle bag in the trunk;
• the blue duffle bag was next to the black cloth grocery bag containing the firearm;
• a machete was located in plain view in the trunk;
• the sawed off shotgun is an inherently dangerous and illegal weapon that is invaluable to a drug dealer (as per Sgt. Hill’s evidence); and
• the quantity of drugs in the trunk were valuable particularly when coupled with the weapons.

[55] Sgt. Hill, who has been qualified as an expert regarding drug trafficking by this court on quite a few occasions, was of the opinion that the drugs seized in this case were for purposes of trafficking and the $490 seized represents currency derived from the sale of drugs. With regards to the sawed off shotgun, ammunition and machete, his uncontested evidence was that having a weapon is an almost essential component of a drug trafficker’s trade. In addition, in Sgt. Hill’s opinion, the total quantity of the marijuana seized—slightly less than one kilogram—is not a quantity typically possessed by consumers. As for a drug trafficker dealing with three different types of drugs, he/she offers different substances that are often complementary to each other. I accept Sgt. Hill’s evidence.

[56] The Defence argues that even if the backpack was located in the front passenger seat area where Mr. Sealy-Ward had been sitting, there is a reasonable possibility that this was Mr. Enache’s bag because Cst. Tessier and Cst. Lachance first observed Mr. Enache at the front passenger seat area. There was no evidence that Mr. Sealy-Ward had a backpack with him when he was first observed at the front driver’s door area of the vehicle or the front passenger seat area of the vehicle or any other observations by the police officers that the backpack was outside of the car. The Defence submits that this suggests that the backpack was already inside of the front passenger seat area when Mr. Sealy-Ward entered the seat. In addition, the bag was closed and there was no evidence provided that Mr. Sealy-Ward dealt with the bag or its contents. There was no forensic evidence linking him to the backpack or its contents.

[57] The Defence further submits there is a reasonable possibility that the blue duffle bag from the BMW’s trunk could have belonged to any of the occupants of the vehicle or any of Mr. Sealy-Ward’s friends that may have used his vehicle. There was nothing specifically tying Mr. Sealy-Ward to the duffle bag. There was no evidence of Mr. Sealy-Ward interacting with the duffle bag. While Sgt. Fenton provided evidence that he found the padlock in the duffle bag that he later opened with the combination that he located in Mr. Sealy-Ward’s wallet, he did not seize the combination lock or know where it was seized from. Cst. Lachance and Cst. Tessier provided inventories of the items seized in the duffle bag and the padlock is not listed. Cst. Lachance testified that he seized the wallet from Mr. Sealy-Ward’s person. Sgt. Fenton testified that he found the wallet zipped in the backpack. According to the Defence, this provides a concrete example of a piece of property that was in one of the seized bags at the time they were turned over to Sgt. Fenton that was not in these bags at the time it was seized. This supports the likely possibility that the padlock was not in the blue duffle bag when seized. Since there is no evidence that this padlock was in the blue duffle bag when it was found in the BMW’s trunk, it affords no evidence to link Mr. Sealy-Ward to the contents of the blue duffle bag. In addition, there is no forensic evidence tying Mr. Sealy-Ward to the duffle bag or its contents. The Defence also argues that there is significance in the packaging of the marijuana located in the backpack and the blue duffle bag. However, I will not deal with this part of the argument since there was no evidence submitted at trial regarding this issue. The Defence makes the same arguments with regards to the cloth grocery bag.

[58] The Defence concedes that if the blue duffle bag is found to be in Mr. Sealy-Ward’s possession, he would have been in possession of the MDA. It is also conceded that the MDA was possessed for the purpose of trafficking by whoever possessed it.

[59] Furthermore, the Defence argues that there are issues related to the samples sent to Health Canada for analysis. For example, the marijuana came from eight different bags and there was a variety in the amounts seized. Sgt. Fenton sent a sample from the combined eight quantities for testing. Since the source of the tested marijuana is unknown, it is a reasonable possibility that not all bags contained marijuana. The Defence makes the same argument for the cocaine that was in two different bags.

[60] With regards to the firearm related counts, the Defence submits that all we have is a broken up shotgun in a bag with no other nefarious items in the bag. Lastly, there is an absence of evidence from which an inference can be drawn that Mr. Sealy-Ward knew there was no serial number on this firearm.

[61] Based on the overall evidence, I find that the Defence’s arguments as described above are mere suppositions and are not supported by the evidence. These are issues that only Mr. Sealy-Ward could deal with, however, he elected not to testify, as is his right. As stated by Husband J. in R. v. Drury, 2000 MBCA 100, 150 Man. R. (2d) 64, at para. 92: “This is a question that only the accused Drury could answer, but he elected not to testify. Raising the question and inviting the court to speculate as to the answer does nothing to overcome the body of evidence which overwhelmingly points to guilt.”

[62] The evidence confirms that Mr. Sealy-Ward was the payor for the BMW. Cst. Tessier testified that Mr. Sealy-Ward was initially the driver of the BMW; he got out of the vehicle and switched seats with the passenger, later identified as Mr. Enache. “The driver got out and the passenger exchanged seats, they got out of the car and then switched”. Cst. Lachance testified that when he saw Mr. Sealy-Ward on the driver side of the BMW, “I see him between the door and frame of car, when you open the door and are about to get in. He is in the little space”. During that time, Mr. Sealy-Ward looked at him and he looked at Mr. Sealy-Ward. The latter then switched from the driver’s side to the passenger’s side of the vehicle and the passenger switched to the driver’s side of the BMW.

[63] A black wallet was located inside of the backpack. Cst. Lachance was specifically asked if this was the wallet that he had seized from Mr. Sealy-Ward’s person. Cst. Lachance testified that it did not look like the wallet that he had seized from Mr. Sealy-Ward. This evidence was not contradicted. The black wallet inside of the backpack contained Mr. Sealy-Ward’s personal cards such as his Photo Card issued by the province of Ontario, his RBC client card, his Capital One Mastercard, etc. In addition, the wallet contained twenty-two $20, four $10 and two $5 bills, totalling $490. In my view, a very significant piece of evidence linking Mr. Sealy-Ward to the blue duffle bag in the trunk of the BMW was the padlock located inside of the bag. The wallet containing the money and Mr. Sealy-Ward’s personal cards also included the round circle sticker with the combination numbers that was later used by Sgt. Fenton to unlock the padlock.

[64] The Defence’s speculation regarding the testing of the samples is not accepted. The police officers who testified have extensive experience in dealing with drugs and testified that marijuana in the eight bags looked the same and the cocaine in the two bags were similar in appearance. Sgt. Fenton testified that the 1.2g sample of marijuana had the same appearance as the rest of marijuana and the sample of cocaine had the same appearance as the rest of the cocaine. I agree with the Crown that it is highly improbable that a drug trafficker carries around fake drugs.

[65] With regards to the sawed off shotgun, I disagree that the cloth grocery bag did not contain other nefarious items. The bag contained the sawed off shotgun in three parts, eight rounds of a 410 gage ammunition and a balaclava. This bag was located next to the blue duffel bag which contained marijuana and cocaine in the trunk of Mr. Sealy-Ward’s BMW. As noted in R. v. Anderson-Wilson, 2010 ONSC 489, the nature of other items located proximate to the firearm (in this case the marijuana and cocaine) is capable of providing context for inferences of knowledge and control. Based on the overall evidence, I can easily infer that Mr. Sealy-Ward had knowledge and control of the sawed off shotgun.

[66] All of the factors listed by the Crown taken together lead to a logical, rational and reasonable inference that Mr. Sealy-Ward had knowledge and control of the items seized from his BMW in the backpack, and the items located in the trunk such as the blue duffle bag and the cloth grocery bag.

[67] As per R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, the Crown has proved that constructive possession has been established beyond a reasonable doubt. More particularly, the evidence supports that Mr. Sealy-Ward knew the contents of the backpack, blue duffel bag and cloth grocery bag located in his BMW. I find that the only logical, rational and reasonable inference is that Mr. Sealy-Ward knowingly put the items in question in his BMW and he intended to have the objects for his use or benefit.

[68] The evidence, taken together and viewed in its totality and not in isolation, establishes that Mr. Sealy-Ward was in possession, either alone or jointly with Mr. Enache, of the marijuana, cocaine and MDA located in his BMW for the purpose of trafficking.

[69] Lastly, I find that Mr. Sealy-Ward had knowledge and control over the firearm and ammunition seized from the trunk of his BMW.

[70] I am mindful of the admission by the parties that there was no evidence that the seized ammunition was capable of being discharged from the seized firearm.

[71] Overall, I do not believe the alternative inferences proposed by the Defence that they were reasonable enough to raise a doubt as to Mr. Sealy-Ward’s guilt. I find that the Crown has proven beyond a reasonable doubt counts #1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 as listed in the indictment.

Conclusion

[72] The following are my findings regarding each count:

• #1 I find Mr. Sealy-Ward guilty of storing a firearm in a careless manner contrary to s. 86(3) of the Code;
• #2 I find Mr. Sealy-Ward guilty of storing ammunition in a careless manner contrary to s. 86(3) of the Code;
• #3 I find Mr. Sealy-Ward guilty of possession of a weapon for the purpose dangerous to the public peace contrary to s. 88(2) of the Code;
• #4 I find Mr. Sealy-Ward guilty of possession of a prohibited firearm contrary to s. 91(3) of the Code;
• #5 I find Mr. Sealy-Ward guilty of possession of a prohibited firearm contrary to s. 92(3) of the Code;
• #6 I find Mr. Sealy-Ward guilty of occupying a motor vehicle knowing there was a prohibited firearm in the motor vehicle contrary to s. 94(2) of the Code;
• #7 I find Mr. Sealy-Ward not guilty of possession of an unloaded prohibited firearm together with accessible ammunition capable of being discharged contrary to s. 95(2) of the Code;
• #8 I find Mr. Sealy-Ward guilty of possession of a firearm knowing that the serial number had been altered, defaced or removed contrary to s. 108(2) of the Code;
• #9 I find Mr. Sealy-Ward guilty of possession of a Schedule I substance (cocaine) for the purpose of trafficking contrary to s. 5(2) of the CDSA;
• #10 I find Mr. Sealy-Ward guilty of possession of a Schedule I substance (methylenedioxyamphetamine (“MDA”) for the purpose of trafficking contrary to s. 5(2) of the CDSA; and
• #11 I find Mr. Sealy-Ward guilty of possession of a Schedule II substance (marijuana) for the purpose of trafficking contrary to s. 5(2) of the CDSA.

Justice M. O’Bonsawin

Released: April 29, 2019