COURT FILE NO.: CR-24-20000056-0000 DATE: 20240326
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – DAMEN SMITH Defendant
Counsel: George Lennox and Dean Sgmouromitis, for the Crown Marcus Bornfreund, for the Defendant
HEARD: January 25 to February 1, 2024
JUSTICE S. NAKATSURU
1On June 15, 2021, a police surveillance team tried to box in a Nissan Rogue while it was parked in a strip plaza on Jane Street in the city of Toronto. They were going to arrest its driver, the defendant, Mr. Damen Smith, along with the other occupants [1] which included a Shamal Searchwell-Beals whom the police believed to be the supplier of drugs for Mr. Smith. Mr. Searchwell-Beals had just gotten into the rear seat of the Rogue from an adjacent Hyundai when unmarked police cars moved in quickly to contain the Rogue. Mr. Smith accelerated and dramatically reversed over a low embankment. The Rogue landed on Jane Street, busy with traffic at 6:30 p.m. on that summer evening. Three police cars followed the Rogue over the embankment. One deliberately struck the Rogue’s front. Another intentionally struck its rear on the passenger side. As Detective Balint tried to maneuver his car to block the driver’s side, Mr. Smith got out and fled down the roadway toward the parking lot of another plaza. A foot chase ensued. It ended with Mr. Smith being struck by Detective Balint’s vehicle in the parking lot. When Mr. Smith got to his feet again, Detective Balint placed him under arrest for drug offences that Project Red Owl investigators believed he had been involved in based upon wiretap intercepts.
2After his arrest, search warrants for the Rogue and the address of unit 201, 10 Allenhurst Drive, Toronto, were executed. Drugs, a gun, and other evidence were seized. Additional charges were laid against Mr. Smith.
3The charges Mr. Smith faces at his trial can be broken down into three categories:
- trafficking in various illegal drugs from May 8 to June 15, 2021; [2]
- possession of a firearm, proceeds, and drug offences resulting from the June 15, 2021, search of the Rogue; [3] and
- drug and proceeds offences resulting from the June 15, 2021, search of unit 201, 10 Allenhurst Drive. [4]
4Before analyzing the evidence, I emphasize that any propensity reasoning is steadfastly rejected. No cross-count similar act application was brought. The evidence led by the Crown must be assessed appropriately: R. v. Baksh, 2022 ONCA 481, at paras. 18-28. Provided propensity reasoning is eschewed, evidence relating to one count can be circumstantial evidence to prove another count depending on the fact-specific circumstances: R. v. Jahangiri, 2022 ONCA 644, at paras. 36-38.
5Proving the charges depends significantly upon circumstantial evidence. Thus, for the Crown to meet its burden, I must be satisfied that the accused’s guilt regarding the material count is the only reasonable inference that can be drawn from the evidence or the absence of evidence. This means I must be satisfied that the circumstantial evidence, assessed logically and in totality, in light of human experience, excludes any other reasonable alternative other than guilt. If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35.
A. Trafficking in various illegal drugs from May 8 to June 15, 2021
6Proof of these charges depends upon the authorized intercepts of private communication.
7The defence concedes the phone found under the Rogue on the roadway after the interaction with the police was the phone used in the intercepts and that it belonged to the defendant who is identified in the transcripts to be Damen Smith. Of course, the intercepts and not the transcripts are the evidence.
8In addition, the Crown relies upon expert police officer reports about certain terms and language used in the calls. The defence admitted them without having to hear from the officers. Though admitted into evidence in this way, this expert evidence will be assessed by me just like any other witness. In other words, none, part, or all of that evidence can be accepted.
9At final submissions, the defence advised that Mr. Smith wished to change his plea to that of guilty on these counts. All agreed that the most efficient manner was to simply enter findings of guilt on these counts. The Crown has proven all the essential elements beyond a reasonable doubt. I have listened carefully to the intercepts and scrutinized the texts. Of the 183 interceptions of private communications spanning the period May 6 to June 15, 2021, the vast majority reveal a consistent pattern of retail drug trafficking by Mr. Smith. A purchaser contacting Mr. Smith. A request for one drug or another. An agreement to sell. An arrangement for a meet. There can be no doubt whatsoever Mr. Smith was trafficking in the various drugs.
10Without hesitation, I find there is no alternative interpretation of these intercepts. The content including references to such things as the weights of the substances (often using drug slang like “half-ball”) as well as the pricing, the brief nature of the conversations, the mutual understanding of what is being transacted, the meetings set up, complaints and compliments of the product and the existence of repeat customers all support this finding.
11Furthermore, what is being discussed are drugs; a finding supported by the lexicon filed in the drug expert report of D.C. Asner. For example, “sizzy”, “molly”, “percs”, “Xanies”, “soft”, and “white”. Indeed, in a few intercepts, people use the words “cocaine”, “Xanax”, and “MDMA”. [5]
12There will be findings of guilt on these counts.
B. The offences resulting from the June 15, 2021, search of the Rogue
1. The possession of drugs for the purpose of trafficking and the proceeds of crime counts
13The takedown of the Rogue happened at 6:28 p.m. The search of the Rogue at the scene revealed numerous drugs in different locations of the vehicle as well as a firearm, scales, and phones. The Crown relies upon constructive possession and/or joint possession of the various drugs pursuant to s. 4(3) (a)(ii) and s. 4(3)(b) of the Criminal Code. Where the accused does not have physical custody of the object in question, but has it in any place, for the use or benefit of themselves, this amounts to constructive possession. To prove this, the accused must have knowledge of the character of the object, knowingly put or kept the object in a particular place, whether that place belongs to them, and intends to have the object in that place for their use or benefit: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17.
14One essential element is proof of knowledge. In this case, several items of evidence prove knowledge.
15The intercepts on June 15, revealing Mr. Smith arranging drug deals with unknown persons [6] are evidence that at a time close to the finding of the drugs by the police, he was engaged in drug dealing in his vehicle. This contemporaneous circumstantial evidence supports the factual finding that the drugs in the car were Mr. Smith’s. The probative value of the intercepts on this issue does not depend upon propensity reasoning, but from the fact that he would have needed a supply of drugs for his customers on the day in question: Jahangiri, at para. 4.
16The circumstances in which the drugs were found also support Mr. Smith’s knowledge of their presence. D.C. Morgan found some drugs in plain sight in the driver’s side door. Within easy reach for a driver to traffick from the car. The officer also found a men’s care bag on the front passenger side floor with various drugs inside. D.C. Doyle found two small bags with crack cocaine on the passenger seat. While I appreciate that Ms. Raven Forde was sitting in the front passenger seat, the proximity of these drugs to the driver along with the above intercepts are strong evidence of Mr. Smith’s knowledge of the various drugs.
17In addition, underneath the driver’s seat were two digital scales, which is consistent with Mr. Smith trafficking drugs from his car.
18More contentious is about a kilogram of methamphetamine located in a closed box in the driver’s side rear footwell. Also, a bag with a couple pounds of marijuana was found on the rear passenger side floor. This was where Mr. Searchwell-Beals was sitting.
19Here, the intercepts between Mr. Smith and Mr. Searchwell-Beals in and around June 15 are significant. I note that there is no specific evidence of the voice identification of Mr. Searchwell-Beals in the conversations denoted in the transcripts. Further, no admission was made in that regard. However, the defence does not argue that the person Mr. Smith was speaking to was anyone other than Mr. Searchwell-Beals. A reasonable inference can be drawn from the timing and the content of the calls made on June 15, that the person who showed up at the plaza was the person on the calls.
20To appreciate the full significance of these calls, I will conduct a detailed analysis of them.
21To set the context, several calls prior to June 15 between Mr. Smith and Mr. Searchwell-Beals, while not conclusive, support the Crown theory that Mr. Searchwell-Beals is a drug supplier of Mr. Smith’s. [7]
22Closer in time to June 15, there is a call between the two men that set further important context to the calls intercepted on June 15. On June 13, [8] Mr. Smith asks Mr. Searchwell-Beals if he had gotten through. The latter replies no, that it was supposed to come tonight, but he would not get it until tomorrow. Mr. Smith asks what the “tags” or price would be. Mr. Searchwell-Beals replies he was not sure but in the “lows” and asks Mr. Smith what “tags” he was hearing, “nine seven, nine five?” Mr. Smith says no he was saying for the “full thing”. Mr. Searchwell-Beals says, “what, like around, like thirty, thirty-eight still?” Mr. Smith replies yeah, “the same thing you showed me”. Mr. Searchwell-Beals says he could definitely beat that and “should be able to sell it for at least like maybe thirty-seven, maybe lower.” Mr. Smith says “perfect” and to call him tomorrow as soon as it was in because he owed his boy something as he had borrowed something from him. Mr. Searchwell-Beals agrees. The Crown submits that the men were talking about a kilogram of cocaine because of the price discussed. The drug expert, D.C. Asner’s opinion is that a kilogram of cocaine at the time was selling for $36,000 to $55,000.
23There are relevant calls between Mr. Smith and others on June 14. In two calls that day, [9] Mr. Smith speaks with a “Jackson”. In the first call, Mr. Smith asks Jackson if he still wanted that “thing”. When told yes, Mr. Smith said “okay” and that since the “last one is super proper” he was going to tell him that Jackson gets the same thing, “no complications”. Jackson asks if it gets cheaper to let him know. Mr. Smith replies he was going to “link” him now to see what he has to say. Jackson asks to let him know as he did not have too much. In a second call shortly after, Mr. Smith tells Jackson that he is still waiting to get them for “sicker tags”, it’s a bit better than before, and he would “shed five bills”. Jackson says he will be back tomorrow for it. In a third call to an unknown male later that day, the unknown male asks Mr. Smith if he got through and Mr. Smith replies he is still waiting on “a lot of shit”. Mr. Smith says he is waiting for “a bird molly (MDMA), a bird tina (methamphetamine), and normal bird” [10]. According to D.C. Asner, a “bird” is a term used for a kilogram. Later in the call, he says he is trying to break down “some of these P’s (points of fentanyl) but he was trying to get those “birds”. The unknown male then says to link him when Mr. Smith’s boy gets back to him.
24These calls are significant as they show that the day before June 15, Mr. Smith is waiting for large quantities of different kinds of drugs. They set the scene for the later calls with Mr. Searchwell-Beals.
25After these calls, on June 14 as well, [11] Mr. Smith calls Mr. Searchwell-Beals and asks him something partially unintelligible. In other words, I cannot make it out. Mr. Searchwell-Beals replies “tomorrow afternoon times”. Mr. Smith acknowledges that and then asks, “what about the next thing?” Mr. Searchwell-Beals says nothing yet. He then says nothing tonight, so tomorrow and he is just waiting. Then a phone rings right, and Mr. Searchwell-Beals says he hopes that is good news. Mr. Smith inquires whether he was going to get it right now. Mr. Searchwell-Beals states he doubted it and that it will be tomorrow. Mr. Smith says let him know and that he’ll “take something for sure.”
26These calls set up the pivotal events on June 15.
27On June 15, at 14:41 [12], Mr. Smith asks Mr. Searchwell-Beals where the latter was. Mr. Searchwell-Beals says he would be back at Weston or Walmart in ten minutes. Mr. Smith says he was at the “G-station by my crib”. Mr. Searchwell-Beals suggests meeting in six minutes. Mr. Smith agrees but says he still has to “count the things quick”. Mr. Searchwell-Beals apologizes and says this guy could only meet at that time. Then Mr. Smith inquires how long Mr. Searchwell-Beals would be at the gym. An hour was the reply. Then, Mr. Smith says that he will check Mr. Searchwell-Beals after the gym as Mr. Smith was probably going to eat and he had to “count some files, you know.” D.C. Asner’s lexicon interprets “files” as money. The two men agree to be in contact when Mr. Searchwell-Beals is done at the gym.
28At 17:05, [13] Mr. Searchwell-Beals calls Mr. Smith and says he was trying to call Mr. Smith but it was going to voice mail. Mr. Smith apologizes and says he is just up north, and that he would call when he gets back “to the ends”.
29At 17:50, [14] Mr. Smith calls Mr. Searchwell-Beals to say he is just driving back “to the ends” and asks Mr. Searchwell-Beals if he wants to “link up quick.” Mr. Searchwell-Beals says he just got home and was about to eat. Mr. Smith says he will be back in 20 minutes, and they agree that Mr. Smith was going to call then. Mr. Searchwell-Beals says he will shower and wait for him.
30At 18:04, [15] Mr. Smith calls Mr. Searchwell-Beals and asks the latter if he wants to “meet at Mac’s in ten?” Mr. Searchwell-Beals agrees and Mr. Smith assures him that he will be there “in legit ten.”
31At 18:17, [16] Mr. Searchwell-Beals calls Mr. Smith and Mr. Searchwell-Beals says he has “to scale something. I’m leaving now”. D.C. Asner’s lexicon interprets “scale” to mean “weigh scale”. As a matter of common sense, “scale” as used in this call likely means to mean weigh something. Mr. Smith answers it’s all good and he had just pulled up.
32In summary, when I assess these calls on June 15 in the context of the previous calls, I am sure that Mr. Smith and Mr. Searchwell-Beals are planning to meet at the Mac’s convenience store for a drug deal. The fact that the police observe Mr. Smith entering the plaza where a Mac’s convenience store is located at a time proximate to when Mr. Smith says he is just pulling up, supports this. The fact that Mr. Searchwell-Beals then attends the same plaza, just as he says he will in the call, supports this. The fact that the methamphetamine was found in the back cabin area of the Rogue supports the meet was for a drug transaction. Indeed, the call on June 14 with an unknown male indicates that Mr. Smith was in fact waiting for a kilogram of methamphetamine. In addition, a kid’s backpack with over $25,000 in cash was found on the floor of the driver’s side. When I analyze the charge of possession of the proceeds of crime below, I explain why I find this to be Mr. Smith’s cash. The obvious question to be asked is why Mr. Smith, who generally is a retail level seller of drugs, would have that significant quantity of cash in his car? The answer is to purchase a significant quantity of illegal drugs. In R. v. Duvivier, 2010 ONCA 136, at para. 8, where money was seized from the accused at the time of his arrest, the court observed that the presence of money was one piece of circumstantial evidence available for consideration as pointing to knowledge and control of the drugs.
33In my opinion, the whole of the evidence proves beyond a reasonable doubt that Mr. Searchwell-Beals brought the methamphetamine to sell to Mr. Smith. Mr. Smith was waiting in the Rogue to purchase the methamphetamine. There is no other reasonable inference to be drawn from the totality of the evidence.
34When I look at other evidence or the absence of evidence, it does not dissuade me from this conclusion. True, no police officer observed Mr. Searchwell-Beals bring anything from the Hyundai into the Rogue. However, the police were not able to see Mr. Searchwell-Beal’s entire body. D.C. Miles, who had the best vantage point when this occurred, could not see Mr. Searchwell-Beal’s arms, as his line of view was partially blocked by the Hyundai that Mr. Searchwell-Beal exited from.
35The possibility that Mr. Smith and Mr. Searchwell-Beals were speaking of cocaine earlier, on June 13, does not impede my finding that Mr. Searchwell-Beals brought the methamphetamine. It was clear that there was some difficulty with Mr. Searchwell-Beal’s own supplier. Moreover, on June 14, Mr. Smith asks Mr. Searchwell-Beals about the “other thing”. The “other thing”, it turns out, was methamphetamine. The call with the unknown male on June 14 reveals Mr. Smith was waiting for a kilogram of that specific drug.
36That the amount of money brought by Mr. Smith is greater than what D.C. Asner opined the cost of a kilogram of methamphetamine was in 2021 also does not make me question my finding. First, the amount is not that far off. D.C. Asner opined a kilogram of methamphetamine was $16,000 to $20,000. Also, it is worth mentioning two lbs. of marijuana was found in the back seat area which if Mr. Smith was also buying would have added to the overall cost of the transaction.
37There is then Mr. Smith’s flight from the scene. I expand upon this later in my reasons when it comes to the firearm counts. For the moment, I will say that while there might be some alternative explanations for the flight, this “after-the-fact” conduct while by no means determinative, tends to support Mr. Smith’s knowledge of the various drugs in the car.
38When the whole of the evidence is considered, I am satisfied beyond a reasonable doubt that the methamphetamine was brought into the car by Mr. Searchwell-Beals and that Mr. Smith knew that. Bluntly, Mr. Smith did not allow a kilogram of methamphetamine to be brought into his car without his knowing about it. [17]
39Moving on from knowledge, I find control of the various drugs to be proven beyond a reasonable doubt. Though this was a rental car, Mr. Smith was seen by surveillance officers driving the car before on previous dates. On June 15, he was the driver. He exercised control over the car and its contents including the drugs. Other than the methamphetamine in the box, I further find that those drugs belonged to Mr. Smith and he exercised control through ownership. Regarding the methamphetamine, the evidence does not establish clearly that the transaction had taken place and that Mr. Smith obtained the methamphetamine from Mr. Searchwell-Beals. However, given my conclusion from the intercepts and the fact that Mr. Smith permitted Mr. Searchwell-Beals to enter the vehicle for the purpose of this transaction, he exercised control over the methamphetamine: R. v. Chambers (1985), 20 C.C.C. (3d) 440 (Ont. C.A.); R. v. Terrence, [1983] 1 S.C.R. 357. The methamphetamine was in the backseat of the Rogue for Mr. Smith and Mr. Searchwell-Beals’ use and benefit to complete the transaction. While Mr. Smith had an interest in the drugs as well, the most salient fact is that by being in control of the vehicle, he had control over who could enter it and under what circumstances. He had the power to give consent or to withhold consent to Mr. Searchwell-Beals’ entering the vehicle knowing the latter was bringing the methamphetamine for the transaction. Mr. Smith chose to give his consent because he wanted to purchase the methamphetamine. Thus, I am sure he exercised sufficient control.
40The defence argued that it was a reasonable alternative that Mr. Smith did not have possession of the drugs as there were two other occupants in the vehicle. I find the fact that Ms. Forde and Mr. Searchwell-Beals were in the car does not afford a reasonable inference that Mr. Smith did not have knowing possession of these drugs. On the evidence, it is an entirely unreasonable inference that Mr. Smith did not know about the drugs and did not exercise control over them.
41The defence made no submissions regarding whether the possession was for the purpose of trafficking. Rightfully so. Given the intercepts of June 15, the circumstances in which the drugs were found, and the opinion of the drug expert, D.C. Asner, the Crown has proven this essential element beyond a reasonable doubt.
42There will be findings of guilt on counts 8 to 12.
43In a child’s “Shark” backpack lying in the footwell of the driver’s seat was $25,455. I am satisfied beyond a reasonable doubt that the Crown has proven all the essential elements of the offence of possession of proceeds of crime. Based on the intercepts alluded to above, the finding that Mr. Smith was at the material time a drug trafficker, and the monies were to be used to purchase drugs from Mr. Searchwell-Beals, I find that this sum of money was derived directly from Mr. Smith’s drug trafficking. I am satisfied beyond a reasonable doubt that the money was Mr. Smith’s, he knew of its illicit origin as he was the one who gained it by trafficking in drugs, and he had brought it to the meeting to purchase drugs. This is based on the whole of the evidence including the intercepts, (especially the intercept where he says he must “count the files”), the large amount of cash brought to the scene, and the nature of the backpack used to carry it (clearly so as to not raise suspicion). I find there to be no other rational inference to be drawn from the evidence except that Mr. Smith possessed monies of a value exceeding five thousand dollars, knowing that all or part of that property had been derived directly or indirectly from an offence punishable by indictment contrary to s. 354(1) of the Criminal Code.
44Therefore, Mr. Smith is found guilty of count 13.
2. Possession of the firearm counts
45After the police disabled the Rogue on Jane Street, D.C. Miles dealt with the front seat passenger, Ms. Forde, while D.C. Doyle dealt with Mr. Searchwell-Beals. Both were detained. D.C. Miles had Ms. Forde step over the driver’s seat to extricate herself from the car since her passenger side door was blocked by one of the police cars. Her foot hit a black satchel on the driver’s seat. To D.C. Miles, it seemed to contain something heavy. After handing Ms. Forde off to another officer, he returned to the car, unzipped the satchel, and saw a firearm within it. The Crown submits that it was Mr. Smith’s firearm. Proof of its possession depends upon circumstantial evidence. Thus, the cumulative effect of all of the evidence must be considered including weak evidence: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37.
46The following is my analysis of that evidence.
47Detective Balint testified that at 8:40 p.m. on June 14, 2021, at 10 Allenhurst Drive, he saw Mr. Smith walk to that address with a black satchel slung across his shoulder. It was not as big as a knapsack but bigger than a fanny pack. In cross, he admitted that the satchel had no distinctive features. Based on the photos of the satchel that had the firearm, it does not appear to me that Mr. Smith was carrying that satchel on June 14 since the satchel with the firearm had a very distinctive bright red stripe on the shoulder strap. It is hard to miss. It appears to be a designer satchel. In addition, I am mindful that black or dark colored side satchels are not that rare these days. This, coupled with the lack of a red striped strap on the bag that was seen on June 14, gives this evidence of Detective Balint little weight in supporting the inference that the satchel with the firearm was Mr. Smith’s. Of course though, I will consider it in the overall proof by the Crown.
48More significantly, on June 15, Detective Balint observed Mr. Smith exit 10 Allenhurst Drive with a female at 2:15 p.m. and get into the Rogue. He also took a short video of Mr. Smith. The video does not show Mr. Smith with a satchel. Detective Balint testified under cross that he had a decent chance to see Mr. Smith, longer than the short video, and agreed he did not see Mr. Smith with anything in his hand or with a black satchel. Thus, there is no direct evidence of Mr. Smith carrying the black satchel that day though I appreciate it could have already been in the car or he could have picked up elsewhere when he was not observed by the police.
49The Crown relies on two intercepts to support proof the firearm was Mr. Smith’s. The first one on May 21, 2021, between Mr. Smith and an ex-girlfriend, “Riza”, does not advance that proof. In that call, Riza is upset at Mr. Smith’s friend, “Smallz”, and counsels Mr. Smith that this person was not a real friend and could not be trusted. Mr. Smith is not worried and the two talk about Smallz. During that discussion, Mr. Smith briefly mentions that if the “little kid” tried anything, he would “bust his head” as Smallz doesn’t even have a “strap”. Expert firearm opinion is that a “strap” can mean a gun. That acknowledged, in my view, even assuming “strap” meant a gun in this conversation, this comment says nothing about Mr. Smith having a gun.
50The second intercept relied upon by the Crown happened on May 30, 2021, between Mr. Smith and someone identified to be “Kamara”. The Crown submits the two men are having a conversation about a firearm magazine and ammunition for a firearm. I have listened to this call numerous times and have considered it in the context of the evidence as a whole. I am unable to conclude the men are talking about a firearm, ammunition, or a clip for the following reasons. First of all, nothing like that is alluded to in the call except perhaps when Kamara at the beginning of the call laughs and without any context, says he can’t picture Mr. Smith with a “thirty” because Mr. Smith is too militant, and he does not really need the “extra shots”. Mr. Smith says he does not need the extra “shit” and he would take an extra “kleezy”. The Crown argues “kleezy” means a clip or a magazine. However, D.C. Ivkovic, the expert on coded/slang language for firearms makes no reference to “kleezy”. Kamara then says a man’s trying to sell him a “thirty boppers”. The Crown argues that this is a thirty-round magazine for a firearm of the sort found in the vehicle. However, again D.C. Ivkovic gives no opinion on this language. Moreover, Mathew Passmore, the Senior Firearms Officer, provided opinion evidence that while thirty-round magazines are generally available for use in semi-automatic firearms from third party suppliers, for the model of firearm seized from the car such a thirty-round magazine was not commonly available on the open market in Canada nor the United States. Mr. Smith and Kamara then talk about pricing but it is unclear from the pricing what they are discussing. Given the numerous other calls related to drug trafficking, it is an available reasonable inference that they are discussing something drug related. Finally, even if they were talking about ammunition and something firearm related, as I see the call, a plausible interpretation is that Kamara had a firearm but not necessarily Mr. Smith. While I will still consider this evidence in the overall assessment of the circumstantial case against Mr. Smith, I do not find this call to be as inculpatory as the Crown argues.
51The fact that the satchel was on the driver’s seat along with Mr. Smith’s car keys is good evidence supporting the inference the satchel containing the firearm belonged to Mr. Smith. On the other hand, other occupants of the vehicle could easily have put the satchel there once Mr. Smith left the vehicle. It would be a simple matter to toss the satchel onto the seat. I note that neither Ms. Forde nor Mr. Searchwell-Beals were called to give evidence at this trial.
52There is the DNA evidence. The DNA expert testified that Mr. Smith could not be excluded as the major contributor of the DNA found on the firearm. There was other person(s)’s DNA on the gun but not in enough quantity to create a profile. Given the improbability of a random match, I find that Mr. Smith’s DNA was on the firearm.
53The DNA evidence of Mr. Smith on the gun would normally be very strong evidence for the Crown. However, the gun was very poorly handled by the police prior to sending it for DNA analysis. The firearm was proven safe at the scene by D.C. Morgan. However, he also handled numerous drug exhibits from the car as well as items such as the key fob. He also handled the satchel which D.C. Miles first touched when he discovered the gun after touching parts of the vehicle. D.C. Morgan could not recall if the satchel was closed after it was proven safe but he left all the evidence together on the front seat of the car. All of this increased the chances of cross-contamination of Mr. Smith’s DNA with the gun. Even worse was the procedure back at 12 Division when the gun was taken out and laid out on a large cardboard box along with the other items seized including the drugs found in the car so they could be photographed. For example, D.C. Manserra handled the exhibits before he touched the gun to prove it safe. Another example. D.C. Tanel handled the exhibits before he removed the firearm from the satchel. Although the officers wore gloves, clearly by handling the objects in this way, the police could have inadvertently cross-contaminated the gun with Mr. Smith’s DNA from another object. This is not speculation. It is a reasonable possibility. The DNA expert was unable to opine whether Mr. Smith’s DNA was deposited there directly or through the mechanism of transference. This state of the evidence weakens the otherwise strong inference I could have drawn from Mr. Smith’s DNA on the firearm. Again, despite the problems in ensuring the proper handling of the gun, I will still consider this evidence when assessing the inference to be drawn from the cumulative effect of the evidence.
54Mr. Smith’s flight from the scene is also good evidence. Evidence of "after-the-fact" conduct can be circumstantial evidence of guilt including the accused’s level of culpability or intent, but it must be approached with caution: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 25; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 23; R. v. Arcangioli, [1994] 1 S.C.R. 129 at p. 143. It is well-established that before drawing an inference of guilt from post-offence conduct, a trier of fact must consider alternate explanations for the conduct: White, at paras. 23-34. In determining whether the evidence can be used for this purpose, the court should consider the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial: Calnen, at para. 119.
55The alternative explanations for his attempt to flee police containment both in the Rogue and on foot, makes the drawing of the right inference complicated in this case. As noted above, Mr. Smith could equally have been fleeing from the drugs in the car that I find belonged to him. Moreover, there is an intercepted call where Mr. Smith discusses how he gets a thrill out of fleeing in a car from the police. [18] He knows the police do not engage in dangerous high-speed chases and he views flight as a good option should the police ever seek to arrest him in a car. This extremely irresponsible attitude must be rightfully condemned but it does add to the alternative explanations for his conduct. In other words, his flight both in the car and on foot could partly be explained by that attitude as opposed to any knowledge or control over the firearm in the satchel. In the end, while this evidence is probative, it is not sufficiently fact-specific to the firearm in the satchel that in the circumstances of this case, it much advances the circumstantial inference of guilt on the firearm charges.
56Lastly, Mr. Smith was not alone in the car. The defence argues that the gun could have belonged to one of the passengers without Mr. Smith knowing of it. I am not persuaded that the gun and satchel belonging to Ms. Forde is a reasonable inference to be drawn given the lack of evidence connecting her to the satchel, any drug-trafficking or a motive to have a firearm. However, it is reasonably possible that Mr. Searchwell-Beals could have brought the satchel with the gun into the Rogue and have put the satchel onto the driver’s seat to distance himself from the firearm contained within without Mr. Smith’s knowledge. This is an inference that flows logically from the evidence and is not conjecture nor speculation for the following reasons.
57First, given the observation points of the officers conducting surveillance, no officer could say that when Mr. Searchwell-Beals exited the driver’s seat of the red Hyundai and entered the backseat of the Rogue, he was not carrying anything like the satchel in his hands. Indeed, I have already determined that he was at least carrying the box of methamphetamine.
58Second, Mr. Searchwell-Beals had the opportunity to place the satchel into the driver’s seat. He knew the police were present. They had rushed the Rogue with guns drawn yelling “police”. He had time to put the satchel there once Mr. Smith had exited the driver’s seat and had run off. Given the dynamic situation unfolding on Jane Street, no one could see what was happening inside the Rogue.
59Third, Mr. Searchwell-Beals had a motive to bring a firearm to the scene. The Crown argues that he did not, because he had a good relationship with Mr. Smith and therefore did not fear that Mr. Smith would rob him or otherwise take advantage of him. However, it may not be Mr. Smith that Mr. Searchwell-Beals might have feared. Mr. Searchwell-Beals was bringing a large quantity of methamphetamine to the meet. He was going to leave the meet with a large quantity of cash. It makes common-sense that Mr. Searchwell-Beals may have feared others who might want to relieve him of either the drugs or the cash. In these circumstances, it is as logical and consistent with human experience for Mr. Searchwell-Beals to arm himself with a firearm as it was for Mr. Smith to do so.
60Fourth, the DNA evidence does not preclude Mr. Searchwell-Beals. There is a lessor quantity of unknown DNA contributor(s) on the swabs taken from the firearm.
61Ultimately, it is more likely than not that the gun was Mr. Smith’s. Looking at the evidence cumulatively, including all the less probative evidence, it is an entirely reasonable inference based on the circumstantial evidence that the gun is Mr. Smith’s. Indeed, if Mr. Smith was alone in the car or even with just Ms. Forde, a finding of guilt would be inevitable. But the alternative inference, that it was Mr. Searchwell-Beal’s firearm brought into the vehicle without Mr. Smith’s knowledge or consent remains a reasonable one that cannot be precluded based upon the whole of the evidence. This includes the absence of evidence from the other occupants of the car. Perhaps in an overly basic formulation, there were two drug traffickers in that car who could have had the gun. I cannot be sure which one.
62Mr. Smith is found not guilty of counts 6 and 7.
C. Drug and proceeds offences resulting from the June 15, 2021, search of unit 201, 10 Allenhurst Drive
63A search warrant was executed at what was believed to be Mr. Smith’s residence. In the closet of a bedroom, officers found:
(a) an opaque plastic shopping bag containing: a. a bag of benzodiazepine pills, weighing approximately 152 g, b. a bag of benzodiazepine pills, weighing approximately 215 g, c. a clear bag of MDMA, weighing 254g; and (b) a small locked safe, containing: a. $800 CAD, b. $105 USD, and c. €50.
64When the police arrived to execute the search warrant, they had the keys that was on the key chain with the fob to the Rogue. Inside the two-bedroom apartment, was someone who identified himself to the police as Mark Smith.
65To be clear, I do not consider the evidence that Mr. Smith was a drug trafficker as evidence that the drugs in unit 201 were his. That would be propensity reasoning and no proper application was brought by the Crown to have that evidence admitted on these counts for that purpose: R. v. Lepage, [1995] 1 S.C.R 654, at paras. 37-38; Jahangiri, at paras. 38-42. Said differently, no cross-count similar fact application was brought by the Crown to make that evidence admissible for that purpose. Unlike when I dealt with the possession of the drugs in the car, I do not consider the drug trafficking done on June 15 to be contemporaneous circumstantial evidence relating to the possession of the drugs in unit 201, especially given Detective Balint did not see Mr. Smith carry anything to the Rogue when he exited 10 Allenhurst Drive that day.
66That acknowledged, it is a reasonable inference that Mr. Smith possessed the drugs in unit 201 for the purpose of trafficking. He had the keys to the bedroom door and the safe inside the closet. Inside the closet on top of the safe, there were some documents in his name. Also, in a shelving unit, there were more documents in his name. These included a health record and a tax form.
67On the other hand, it is a reasonable inference that the drugs were not Mr. Smith’s but Mark Smith’s, who I have not heard from as a witness. [19] The reasonable doubt comes from the following evidence and absence of evidence.
68Mr. Smith was seen by police surveillance on three occasions leaving the apartment building at 10 Allenhurst Drive on June 10, 14, and 15. But there is little other evidence to establish this is his primary residence. The documents located in the bedroom, while carrying his name, have a Swansea Mews address on it. There are only two documents that I can clearly identify from the photographic evidence of the documents and they are a tax assessment from 2018 and health test results from 2019. No other identification or more current document featuring Mr. Smith’s name or the address of 10 Allenhurst Drive was presented. As the defence submitted, the documents, only in evidence as photographs, are of a nature that a son could store at a parent’s or a close relative’s home. [20] And there does not seem to be many documents. Moreover, while Mr. Smith’s keys opened the bedroom door and the safe, the evidence does not show he had keys to the front door of the apartment. While I appreciate that due to the need to enter the unit quickly, Detective Parmar’s unsuccessful attempt to gain entry using Mr. Smith’s keys may have been due to a lack of dexterity or an impatience to resort to the ram and not from the fact none of the various keys fit the front door lock, there is no excuse for an officer not trying the keys again on the front door when things were calmer and under control.
69A significant piece of evidence is the fact that Mark Smith was in the apartment at the time. He was arrested. D.C. Wocks testified that in the other bedroom, one scale, three envelopes of cash, two baggies of cash, two empty packaging, and two bags of white powder of what was believed to be cocaine was found. [21]
70Moreover, unusually, when the police burst through the door after battering it down until it broke in two, Mark Smith was standing in the hallway with a set of keys in his hand. The door to the bedroom in which the benzodiazepine and MDMA was later found was not locked but open. The police did not try the keys in Mark Smith’s hand to see what door or items they opened. As I said, it is curious behaviour for someone inside an apartment in these circumstances to be walking around with keys in his hand.
71Given this state of evidence, Mark Smith’s absence as a witness has some import. There is no other admissible evidence, such as forensic evidence, tying the drugs in the closet to Mr. Smith.
72While it is a reasonable inference that Mr. Smith had knowledge and control over the drugs in the closet, it remains a reasonable inference that he did not. As the defence submits, Mark Smith would have had time to place those drugs there without Mr. Smith’s knowledge given how the police announced themselves at the door and took time to enter. Mark Smith would have a motive to do that if he wanted to distance himself from those drugs. Mark Smith having keys in his hand and the bedroom door being open support that theory.
73This is a close call. Nonetheless, I find that the burden of proof has not been met by the prosecution.
74Mr. Smith will be found not guilty of counts 14 and 15.
75With respect to the last count, Detective Parmar testified that some of the bills in the safe were older bills and he could not say the currency was current. Only an unhelpful photograph of the monies was produced. The total amount is not large. The monies were stored in a safe. There was nothing else in the safe. Finally, the American and European bills are unlikely to have come from local street trafficking. The defence submits that even if Mr. Smith had knowledge and control, a safe bet given that he had the key to the locked safe, it remains a reasonable possibility that the bills were just placed there to merely collect them. While I can bet that was not the case, nonetheless, on the whole of the evidence it is reasonably true these monies were not proceeds of crime. Therefore, I entertain a reasonable doubt and Mr. Smith is found not guilty of count 16.
D. Final disposition
76Mr. Smith is found guilty of counts 2 to 5 and 8 to 13. He is found not guilty of the remaining counts.
JUSTICE S. NAKATSURU
Released: March 26, 2024.
Footnotes
1Mr. Smith was in the driver’s seat. Ms. Raven Forde was in the front passenger seat. Mr. Searchwell-Beals was in the back passenger side seat.
2Counts 2 to 5 charge the defendant with trafficking in cocaine, MDMA, oxycodone, and benzodiazepine. Count 1 involving methamphetamine was withdrawn by the Crown.
3Counts 6 and 7 deal with the firearm. Counts 8 to 13 include possession for the purpose of trafficking, methamphetamine, cocaine, MDMA, and oxycodone.
4Counts 14 to 16 charge possession for the purpose of trafficking of MDMA and benzodiazepine as well proceeds of crime under $5000.
5Exhibit 26 (Includes audio and transcripts), tabs 13, 24, 95, 132.
6Exhibit 26, tabs 169, 170, 172-178, 180.
7Exhibit 26, tab 17 May 9, 2021, Mr. Smith asks for a price for a “full one” but Mr. Searchwell-Beals does not have any but is expecting some soon; tab 18 May 9, 2021, Mr. Smith asks for “two zaps” (ounces according to the lexicon. The notation in the brackets in this footnote will henceforth be a reference to the lexicon). Mr. Searchwell-Beals says he can do that, but he did not want complaints. Mr. Smith explains he was going to send it out of town so as long as it “looks proper” it was okay. Mr. Searchwell-Beals assures him it is not “hard” (crack) and that he would give him the “tag” (price) for it; tab 19 May 9, 2021, the two men arrange a meeting and Mr. Searchwell-Beals says he is just going to “ski” (weigh) it now; tab 57 May 20, 2021, Mr. Searchwell-Beals tells Mr. Smith that he only has what he told him but Mr. Smith is still looking and asks “not even like a cubes or beezle(ph)?” They arrange to meet later; tab 58 May 20, 2021, Mr. Smith says he is outside Mr. Searchwell-Beal’s “crib” and the latter tells Mr. Smith to come up; tab 60 May 20, 2021, Mr. Smith tells Mr. Searchwell-Beals that he super needs that “thing” as he has “two fucking half bounce whops” (half ounce drug deals) and a kid who buys daily grams, including “f” and “sizz”(fentanyl on burning on foil or cocaine). Mr. Searchwell-Beals says he has to buy a “full” and can’t buy a “half” but that he will look around; tab 85 May 27, 2021, Mr. Smith asks if Mr. Searchwell-Beals still had that “thing” that he got for “sixty-five” as Mr. Smith needed a “four and a half” and asks the price to which Mr. Searchwell-Beals replies he may need the “full-as” and he does not want to “break him down” but he believed his boy might although he can’t; tab 86 May 27, 2021, Mr. Searchwell-Beals tells Mr. Smith he could ask a person for what Mr. Smith wanted but he was just waiting as no one was replying that day; tab 112 June 3, 2021, Mr. Searchwell-Beals tells Mr. Smith he has the “same thing” and they arrange to meet up and when asked what he should have on him, Mr. Smith advises “nine seven”, asks if it is “proper” and when told it is, agrees to it; tab 114 June 3, 2021, Mr. Smith tells Mr. Searchwell-Beals he has been delayed due to getting something done on his boy’s “whip”(car) and they arrange to meet in about an hour.
8Exhibit 26, tab 159.
9Exhibit 26, tabs 161, 162.
10The transcripts reads “Bird Marley, Bird Pena, and Normal Bird”. Having closely listened to the intercept, the transcript is wrong. I clearly hear “bird molly, bird tina, and normal bird.” Using D.C. Asner’s lexicon and the context of the calls, I find “molly” and “tina” to mean MDMA and methamphetamine. The lexicon does not refer to “normal” and I make no finding. The lexicon refers to “bird” as a kilogram.
11Exhibit 26, tab 168.
12Exhibit 26, tab 171.
13Exhibit 26, tab 179.
14Exhibit 26, tab 181.
15Exhibit 26, tab 182.
16Exhibit 26, tab 183.
17I observe that even if one assumes Mr. Searchwell-Beals did not bring the box of methamphetamine with him, the only other reasonable alternative conclusion on the evidence is that it was Mr. Smith himself who owned the methamphetamine and had knowledge and control over it. Either way, he is guilty of the charge.
18Exhibit 26, tab 93.
19Some of the evidence that Mark Smith told the police led through the police witnesses is hearsay evidence and cannot be considered for the truth of its content.
20That Mark Smith is Mr. Smith’s father was only hearsay evidence.
21There is no evidence led that this in fact tested as cocaine.
