Reasons for Judgment

Court File No.: CR-23-101724
Date: 2025-02-06
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Abel Assefa

Appearances:
Andrew Choat, for the Crown
Jordan Drexler, for the Defendant

Heard: February 4 and 5, 2025

Corrected Decision - June 24, 2025:
Paras. 1, 59 – correction to section of Criminal Code as underlined; Paras. 7, 9, 29 an address was removed and any change to wording is underlined.
No other changes to content.

Justice: A. J. Ohler

Introduction

[1] The defendant, Abel Assefa, pleaded not guilty to all charges in a 10-count indictment:

1. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess for the purposes of trafficking, a substance included in Schedule I, namely fentanyl, contrary to section 5(2) of the Controlled Drugs and Substances Act;
2. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess for the purpose of trafficking a substance included in Schedule I, namely cocaine, contrary to section 5(2) of the Controlled Drugs and Substances Act.
3. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess for the purpose of trafficking a substance included in Schedule I, namely methamphetamine, contrary to section 5(2) of the Controlled Drugs and Substances Act.
4. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess for the purpose of trafficking a substance included in Schedule I, namely oxycodone, contrary to section 5(2) of the Controlled Drugs and Substances Act.
5. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess a firearm, namely a shotgun, without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada.
6. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess a firearm, namely a rifle, without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada.
7. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess a firearm, namely a rifle, without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada.
8. On or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, possess a firearm, without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada.
9. On or about the 20th day of July, 2021, at the city of Kitchener in the province of Ontario, traffic in a substance included in Schedule I, namely cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.
10. AND FURTHER THAT the said ABEL ASSEFA unlawfully did, on or about the 15th day of September, 2021, at the city of Kitchener in the province of Ontario, have in his possession, a loaded restricted firearm, namely a handgun, for which he did not have a license and registration certificate, contrary to section 95(1) of the Criminal Code of Canada.

[2] The charges followed an undercover investigation into the trafficking of narcotics. The evidence at trial included a 28-page, 85-paragraph agreed statement of fact; video surveillance evidence; a cell phone extraction report, and photos of items seized on the execution of various search warrants and on the arrest of the defendant. The Crown also called the officer in charge of Project Walrus, DC Matthew Barios (“Barios”) and DC Bryce Schultz (“Schultz”) of the Waterloo Regional Police Service (“WRPS”), both of whom were involved in the undercover investigation.

[3] The defendant called no evidence and did not testify. At the conclusion of trial, the defence made no submissions on count 10 and a conviction will be entered.

[4] For the reasons that follow, acquittals are to be entered on all remaining counts.

Factual Overview

Project Walrus - Identification of Mr. Assefa

[5] In March 2021, the Waterloo Regional Police Service (“WRPS”) began a drug trafficking investigation called Project Walrus. Barios testified that the targets of the investigation, Salman Memon (“Memon”) and Wahid Wahab (“Wahab”) were suspected to be involved in trafficking controlled substances. Police suspected that Memon and Wahab stored controlled substances in a one-bedroom basement apartment, located at unit 18D, 388 Old Huron Road in Kitchener. At the time Barios became involved in Project Walrus, officers believed a third man, Leonard Aliu (“Aliu”), was involved in trafficking with Memon and Wahab.

[6] Between April and September, 2021, police deployed a remote, or “drop” camera, outside the door of unit 18D. The drop camera was situated in a manner that permitted a view of the parking spots located in front of the front door to unit 18D, as well as the door itself. It was not placed in a permanent position but was deployed from time to time during the investigation. While WRPS received information that Aliu frequented the target address, he was not observed at 388 Old Huron Road during the investigation.

[7] On April 15, 2021, the drop camera recorded an unknown man attending unit 18D. The man arrived in a Volkswagen, parked in front of the unit and entered with a key. A little over four hours later, the man exited the unit, got into the passenger seat of another vehicle and drove away. He returned on foot three hours later and left in the Volkswagen. Police later learned that the Volkswagen was rented to Abel Assefa.

[8] On May 21 and 24, 2021, the drop camera recorded the same man arriving at unit 18D driving a rented Toyota Camry. On both dates, the man met with Memon.

[9] On May 28, 2021, police conducted surveillance at Mr. Assefa’s home in Kitchener and observed the same Toyota Camry parked in the driveway. The next day, police conducted a traffic stop of the Toyota Camry. Abel Assefa was driving the vehicle and issued a ticket for speeding. The officer who conducted the traffic stop later reviewed a photo of Mr. Assefa and confirmed he was the man driving the car.

[10] On June 9, 2021, the same man was recorded on the drop camera footage driving a blue Mazda.

Transactions Between Undercover Officers and Memon

[11] On June 30, 2021, an undercover officer texted Memon and made arrangements to buy both cocaine and fentanyl. Some hours later, the man alleged to be Mr. Assefa arrived at unit 18D carrying a plastic bag. After a telephone call confirming the order, Memon left his home and attended unit 18D. Fifteen minutes later, he exited with the man alleged to be Mr. Assefa. Both men got into their vehicles and drove away. Police followed Memon, who met Wahab at a gas station before meeting the undercover officer in the parking lot of a McDonald’s and sold him cocaine and fentanyl. Later that night, Memon and the man alleged to be Mr. Assefa entered unit 18D together, where they stayed for a brief time before leaving again.

[12] On July 7, 2021, the undercover officer arranged to buy an ounce of cocaine from Memon. Memon went to unit 18D where he stayed for five minutes, then met the officer and completed the transaction. Later, the man alleged to be Mr. Assefa and Memon met at unit 18D. The man alleged to be Mr. Assefa left unit 18D carrying what the parties agree appears to be a digital scale.

Cocaine Transaction – Count 9

[13] On July 20, 2021, Memon agreed to sell the undercover officer an ounce of cocaine and an ounce of cutting agent. Shortly before he left his home, the undercover officer asked Memon to bring him an ounce of cutting agent. Memon agreed, left his home and drove to a housing complex on Greenfield Avenue. Memon drove inside the housing complex and police did not follow. He was inside the complex out of view for less than a minute. Memon then drove to 388 Old Huron Road but did not park in front of unit 18D. The man alleged to be Mr. Assefa arrived shortly after Memon, parked in front of unit 18D and went inside. Five minutes later, he exited the unit carrying what appeared to be a brown paper bag and walked out of view of the camera. One minute later, the man returned, empty handed. Three minutes later, Memon left 388 Old Huron Road and met with the undercover officer, handing him a rolled up brown paper bag. Police would find 29.97 grams of cocaine and 28.05 grams of acetaminophen inside the bag.

[14] The Crown filed as Exhibit 1C, photographs of the brown paper bag the undercover officer received from Memon on this date. The bottom of the bag is brown; the outside of the bag is printed with a significant amount of green ink, at least on the sides of the bag visible in the photo.

Transactions Involving Memon and Wahab

[15] Over the next several weeks, Project Walrus continued. Both Memon and Wahab continued to meet with undercover officers, arranging for the sale of cocaine, methamphetamine and fentanyl on several occasions, including August 3, 5, and 25, and September 2 and 8, 2021.

[16] The drop camera did not reveal the man alleged to be Mr. Assefa on any of these dates.

[17] The last date the man alleged to be Mr. Assefa attended at unit 18D was August 17, 2021. He stayed for only two minutes.

[18] Barios testified that on August 18, 2021, during a conversation with one of the undercover officers, Memon asked whether he would be interested in buying guns and let the officer know he was getting five. Memon said he could get the officer guns, if needed.

[19] Schultz testified that the drop camera was deployed again on August 24 and 25; September 2, 8, and 13-15, 2021. The drop camera did not record the man alleged to be Mr. Assefa on any of these dates.

Take-Down Day

[20] Police decided to “take down” the members of Project Walrus by arresting Memon, Wahab and the defendant. Over September 13 and 14, officers made arrangements to buy 13 ounces of fentanyl, one ounce of cocaine and one kilogram of methamphetamine.

[21] On September 15, Memon made arrangements to meet with an undercover officer. He drove to 388 Old Huron Road and met with an unknown male, later identified as Hussan Al-Katan (“Al-Katan”). The two men entered unit 17D together. Fifteen minutes later, Memon and Al-Katan left the apartment and got into separate vehicles. Police stopped both cars a short time later. In the front passenger seat of Al-Katan’s vehicle, officers found a brown paper bag containing the controlled substances ordered by the undercover officer. Underneath the driver’s seat of Memon’s vehicle, police found a Ziploc bag containing fentanyl, cocaine, methamphetamine, OxyContin pills along with a loaded handgun. Barios testified that police were surprised to discover Al-Katan with Memon on take-down day, given that he was not observed by police during their investigation.

[22] Seventeen minutes after Memon’s arrest, police arrested Wahab. He had in his possession a cell phone used to communicate with the undercover officers.

[23] At 5:52 p.m., police conducted a traffic stop of Mr. Assefa. Two officers approached his vehicle from each side. One officer asked Mr. Assefa to step out of the vehicle, which he did. This officer grabbed Mr. Assefa’s left arm and placed him under arrest for trafficking in a Schedule 1 substance and possession for the purpose of trafficking. A second officer asked Mr. Assefa for control of his right arm. Mr. Assefa moved his hand to a pocket in the front of his sweater. The officer commanded Mr. Assefa to stop and took control of his arm. After Mr. Assefa’s hands were cuffed behind his back, officers conducted a pat-down search. Police found a loaded Glock 48, 9-millimetre semi-automatic handgun tucked into his waistband. It contained a magazine holding 11 rounds of ammunition. The serial number was defaced. Police also seized two cell phones.

[24] A photograph of Mr. Assefa taken after his arrest was filed as Exhibit 2A at trial. Mr. Assefa has long curly hair, what the Crown described as thin dreadlocks.

[25] Later that night, police executed search warrants at the homes of both Memon and Wahab. In the basement of Memon’s home, police found cocaine, fentanyl, methamphetamine, OxyContin pills, caffeine powder, a semi-automatic handgun and ammunition, and a total of $516,920 in Canadian currency.

[26] Finally, police executed a search warrant of 388 Old Huron Road, unit 18D. In total, police found:

• 1,220.61 grams of fentanyl;
• 3,315.34 grams of methamphetamine;
• 251.38 grams of cocaine;
• 52.18 grams of heroin;
• Three rifles;
• One shotgun; and
• $36,450 in Canadian currency.

[27] The controlled substances were stored in boxes and/or plastic containers in kitchen cupboards and under the sink, clearly in plain view. Two rifles and the shotgun were stored under the bed. Another rifle was stored in plain view inside a kitchen drawer. Schultz, who was present during the search, testified that there were no locks on any of the kitchen drawers or cabinets in which the drugs, money and guns were found.

[28] Police also found plastic sandwich bags, digital scales, cutting agents, blue, green, purple and pink food colouring.

[29] In the bedroom, police found a coat hanging in the closet. In the pocket of the coat were pieces of mail addressed to Mr. Assefa with his home address (not that of the premises searched). The Crown and the defence agree that the oldest of the documents found in the coat pocket was a credit card bill dated December 12, 2020 and the most recent was a collections notice dated June 7, 2021. In a cardboard box on the floor of the bedroom, police found a binder which contained a valid passport in Mr. Assefa’s name, and medical documents in his name. The Crown and the defence agree that the oldest of these documents was dated April 29, 2020 and the most recent was dated January 13, 2021.

[30] Police searched the cell phone seized on Mr. Assefa’s arrest and obtained search warrants to extract the data. The entire 1,235-page extraction report was filed as an exhibit at trial. Between August 11 and September 12, 2021, police identified 68 calls and text messages between the phone seized from Mr. Assefa and one phone seized from Memon.

Law and Analysis

[31] As noted above, the evidence at trial largely proceeded by way of agreement. None of the officers’ testimony was contested. The only real issue in this case was whether the offences had been proved beyond a reasonable doubt, given the evidence, or absence of evidence.

[32] The Crown argued that Memon, Wahab and the defendant all worked together to traffic controlled substances, and that the items seized from the basement apartment on Old Huron Road were stored there with the knowledge and consent of all three men. The Crown acknowledged that given the circumstantial nature of the evidence at trial, the Crown must establish that the only reasonable inference to be drawn is that the defendant had knowledge of the drugs and guns stored in the condo and consented to their presence.

[33] The Crown argued that there were only two issues at trial: (i) whether the man recorded on the drop camera attending at unit 18D on the dates detailed above is, in fact, the defendant; and (ii) whether, based on his access to the condo unit, the defendant was in constructive or joint possession of the items stored there. A finding that the defendant was the man on the video is necessary to convict the defendant of count 9, trafficking cocaine on July 20, but is not necessary to convict on all other counts, given the presence of important documentation and rental cars rented to his name.

[34] The defence argued that it would be open to the court to find that the defendant was the man on the video, but that was not the issue. Rather, the court had to be satisfied beyond a reasonable doubt that the bag carried on July 20 contained cocaine, and that the defendant had knowledge, consent and control over the contraband discovered in unit 18D, 29 days after he had last visited the premises.

Circumstantial Evidence

[35] With the exception of the evidence in support of count 10, possession of the loaded restricted firearm, the Crown’s case is largely circumstantial. In these circumstances, if there are reasonable inferences to be drawn from the evidence, other than guilt, the Crown will not have met the standard of proof beyond a reasonable doubt. The Crown may, in such cases, be required to negative reasonable inferences, but not every possible conjecture. The question is whether the circumstantial evidence “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” (R. v. Villaroman, 2016 SCC 33, paras. 35-37).

[36] In determining whether the circumstantial evidence meets the required standard of proof, the trier of fact must assess the evidence as a whole, not as individual links in a chain (R. v. Lights, 2020 ONCA 128, para. 37).

[37] Inferences consistent with innocence need to arise from proven facts but may arise from the absence of evidence (Lights at para. 38).

Constructive and Joint Possession

[38] The Crown relies on the doctrine of constructive and joint possession in support of convictions on counts 1-3 and 5-8.

[39] Constructive possession is established where the accused (i) has knowledge of the character of the thing possessed; (ii) knowingly puts or keeps the thing in a place, whether or not that place belongs to him, (iii) intends to have the thing in the place for his use or benefit, or for the use or benefit of another person (R. v. Morelli, 2010 SCC 8, para. 17).

[40] To establish constructive possession, there must be knowledge that extends beyond “mere quiescent knowledge and discloses some measure of control over the item to be possessed” (R. v. Pham, para. 15).

[41] To establish joint possession, there must be knowledge, consent and a measure of control (Pham, at para. 16). Control is established if the accused has the power to grant or withhold consent; control over the object need not be exercised (R. v. Savory).

Identification of the Defendant

[42] The Crown submits that I am in as good a position as the police to make an identification of the defendant, by comparing the photograph of the defendant taken the day of his arrest, to the drop camera footage.

[43] I agree. The quality of the drop camera footage is clear and all of the videos were recorded during daylight hours. I have no trouble concluding that the man recorded on the drop camera video on the various dates referred to above is the same man. In other words, I am satisfied that the videos show the same individual attending on each date. The man is tall, with a stocky build. He wears his hair in long, loose curls. He is often dressed in the same clothing (i.e. grey shorts and flip flops).

[44] The man’s hair often obscures his face as he walks to and from the door of unit 18D. That said, in at least one video, it is clear the man is also wearing a short beard, like that which Mr. Assefa is wearing on September 15 following his arrest. In the photo taken after his arrest, the defendant is wearing his hair in long, loose curls and has a short beard.

[45] If the only identification evidence consisted of the video, and the photograph following arrest, I would not have been satisfied that Mr. Assefa is the man attending unit 18D. However, there is a body of evidence providing circumstantial evidence of the identity of the defendant, namely, the mail and medical documents addressed to Mr. Assefa, his passport, the presence of vehicles rented in his name, and communications between Mr. Assefa and Memon, confirming their association. Circumstantial evidence can be sufficient to prove identification of an accused: see R. v. Loor, 2017 ONCA 696. Indeed, the defence submitted that while it would be open to the court to find that the man on the drop camera footage is Mr. Assefa, the court ought to have a reasonable doubt that the bag was the same, based on the absence of green writing visible on the video. However, even if the court found that it was the same bag, the court should have a reasonable doubt that the bag contained cocaine.

[46] Considering the evidence as a whole, I am prepared to find that the defendant is the person recorded on the drop camera on the various dates listed above, including July 20, 2021.

Count 9: Trafficking Cocaine

[47] The evidence establishes that Memon made plans to sell cocaine and a cutting agent to the undercover officer on July 20, 2021. On the way to his meeting, Memon briefly attended a housing unit where he stopped for one minute, then proceeded to the parking lot of 388 Old Huron Road. He did not attend unit 18D. After Memon arrived, the defendant exited unit 18D with a brown paper bag and walked off camera. There is no evidence where the defendant went. Moments later, he returned empty handed and a short time later, Memon delivered a brown paper bag containing cocaine and acetaminophen to the undercover officer.

[48] The Crown concedes that the video is not so clear that I can conclude beyond a reasonable doubt that the bag shown on the video and the bag retrieved after the drug buy are the same. However, the Crown argues that based on all the other evidence at trial, including the items seized in September, the only reasonable inference is that the bag contained cocaine.

[49] For the defence, the video is simply not clear enough to establish that the defendant met with Memon when he walked off screen or returned on screen empty handed. Moreover, even if I were prepared to find that he did meet with Memon and give him a bag, I ought to have a reasonable doubt there was cocaine in that bag, given evidence Memon stored cocaine at his home – as discovered on execution of the search warrant – and the evidence that Memon stopped at the housing unit on Greenfield Avenue before attending 388 Old Huron Road.

[50] Considering the totality of the evidence at trial, including evidence of their association and the dates on which they were recorded together at unit 18D, I find it reasonable to infer that the defendant met with Memon on July 20, 2021. However, I do have a reasonable doubt that the brown paper bag carried by the defendant contained cocaine.

[51] Simply put, given the presence of both acetaminophen and cocaine in the bag, I cannot be sure that the defendant provided Memon with cocaine on that day. First, there is evidence that Memon stored cocaine in his home, obviating the need to stop at unit 18D. Second, there is also evidence that police discovered acetaminophen in Memon’s home, as well as inside unit 18D. If it is the Crown’s theory that Memon stopped to pick up cocaine, it is also possible Memon stopped to pick up acetaminophen. Third, while there is no evidence that Memon or Wahab stored drugs at any address other than their home and 388 Old Huron Road, I cannot ignore that there is an absence of evidence as to what Memon did during that one-minute stop, including whether he met with any other person to receive any other packages.

[52] There will be an acquittal on count 9.

Counts 1-8: Possession for the Purpose of Trafficking

[53] The drop camera footage establishes that the defendant had access to unit 18D on various occasions from April through August, 2021. The camera footage records the defendant arriving alone, and apparently opening the door with a key. It is clear that during this time period, the defendant has the power to enter unit 18D at will, alone or with others.

[54] On take-down day, the drugs, money and guns seized by police were stored quite obviously, if not in plain view, in unlocked kitchen cupboards and drawers. Having reviewed the entry video of the search and the collection of photographs taken by police, I am satisfied that any person who had access to unit 18D would have known that the one-bedroom, basement apartment contained a significant amount of controlled substances, money and guns, let alone tools to mix and package narcotics for sale.

[55] However, I am not satisfied that the defendant was in constructive or joint possession of any of the items found inside. The difficulty is there is an absence of evidence that the defendant had knowledge of what was inside unit 18D on take-down day, consented to any of those items being there, or exercised any control over the contents. Police deployed the drop camera on eight occasions between August 17 and take-down day. The defendant was not observed at unit 18D at any time. In the absence of any evidence that the defendant had access to the unit between August 17 and September 15, I am not satisfied that he was in possession of any of the contents. The gap in time is simply too long.

[56] In making this determination, I have considered whether the presence of the defendant’s documents and passports inside unit 18D on take-down day and communication between Memon and the defendant as established by the cell phone extraction and agreed statement of facts is sufficient to overcome this gap in time. I find that it is not. The presence of the defendant’s identification, with these quantities of guns and drugs, suggests as a possible inference that the defendant was excluded from unit 18D or had no idea he left his identification behind. In this respect, I found it significant that on August 18, Memon told the undercover officer he was getting five guns and could get guns for the officer; following this conversation, the defendant does not appear at 388 Old Huron Road. Indeed, Al-Katan was arrested with Memon after leaving unit 18D on take-down day. Finally, evidence of communication between the defendant and Memon, without any details as to the nature of those conversations is not sufficient to establish knowledge, consent or control.

[57] In the absence of any evidence to bridge the gap between August 17 and September 15, acquittals must be entered on counts 1-8.

Disposition

[58] At the close of the evidence, the Crown invited an acquittal on count 4, possession for the purpose of trafficking oxycodone.

[59] Accordingly, acquittals shall be entered on counts 1-8. The defence did not contest the evidence in support of count 10, but in any event, the agreed facts establish that the defendant was in personal possession of a loaded restricted firearm in the waistband of his pants when he was arrested on September 15, 2021. Accordingly, the defendant is convicted of possession of a loaded restricted firearm, for which he did not have a license and registration certificate, contrary to section 95(1) of the Criminal Code of Canada.

A. J. Ohler

Released: February 6, 2025