Court File and Parties
Court File No.: Region of Durham: 998 10 25055
Date: 2013-03-05
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kyle Odette
Before: Justice J. De Filippis
Heard on: February 19, 20, & 25, 2013
Reasons for Judgment released on: March 5, 2013
Counsel:
- Mr. J. Clark for the Crown (Canada)
- Mr. M. Newell for the Crown (Ontario)
- Ms. M. Wyszomierska for the Defendant
De Filippis, J.:
Introduction
[1] In 2012, the Durham Regional Police Service's Gun and Gang Unit and the Ontario Biker Enforcement Unit jointly initiated Project Kingfisher to investigate heroin and cocaine trafficking in the Greater Toronto Area. Harley Guindon and Joshua Galante were targets of wiretap authorizations obtained during this investigation. Their communications were intercepted along with those of other known and unknown persons to whom they spoke, including their conversations with Kyle Odette. On August 15, 2012, a Controlled Drugs and Substances Act search warrant was executed at the address of 103-20 Harmony Road North, in Oshawa. Entry was made at approximately 5:00am. Kyle Odette, Adam Odette, Randy Lynn Coombs, Angel Willan, Bianca Allen, and two children were found inside. There are three bedrooms in this apartment. In one of the bedrooms, the police found the following items: 86 grams of crack cocaine; a .45 calibre Springfield hand gun, loaded with 7 rounds of ammunition; 22 calibre revolver, loaded with 9 rounds of ammunition; A box of 22 calibre ammunition.
[2] The five adults in the apartment were all arrested for being in possession of cocaine for the purpose of trafficking and several firearms and ammunition offences. These charges were laid against Adam and Kyle Odette. The charges against Adam Odette were eventually withdrawn after he provided the Crown with a Statutory Declaration. The trial of Kyle Odette began with a motion to exclude the items seized by police pursuant to the search warrant. The application asserted a violation of section 8 of the Charter of Rights and Freedoms. Specifically, it was claimed that the search warrant should not have been issued because the Information to Obtain (ITO) was misleading and did not disclose the requisite grounds to believe the defendant was involved in drug trafficking or establish a link between such offences and the Harmony Rd apartment. I dismissed this application: See R v Odette 2013 ONCJ 62.
[3] Apart from numerous exhibits filed, the Crown called evidence from five police officers and Ms Tracey Willan. The latter had also testified on the Charter voir dire. At the trial proper, she adopted her previous evidence and provided more information. The Defence elected not to call evidence.
[4] It is alleged that Kyle Odette intended to harm the community by trafficking in a dangerous drug and that he possessed guns for the obvious purpose of protecting his product and trade. In spite of the seriousness of the charges, the evidence is relatively simple. Much of it is not in dispute and, with the possible exception of Ms Willan, issues of credibility and reliability do not arise. The primary issue is whether it has been proven that the defendant was in possession of the contraband in question. Continuity of the exhibits and proof of the items as cocaine, firearms and ammunition is not challenged by the Defence.
[5] These reasons explain why I must dismiss the charges.
Residents and Visitors at the Place Searched
[6] The only testimony about the living arrangements at 103-20 Harmony Road in Oshawa came from Ms Willan. To put her evidence in context, it must be immediately pointed out that the drugs and guns in this matter were found hidden under the third drawer of a desk in her bedroom.
[7] Ms Willan stated that Kyle and Adam Odette are her sons and that Randy Lynn Coombs and Angel Willan are her daughters. The latter is 19 years old and has cognitive and learning deficits. She is also the mother of an infant daughter named, Alaska. Randy Lynn is 16 years old. Ms Willan testified that in August 2012 she resided with her two daughters and granddaughter at the Harmony Road apartment. She had lived there for the preceding seven years. Ms Willan was not at home when the search warrant was executed as she had departed the day before to be with a friend in Saskatchewan. She testified that she arranged for her daughters to live with relatives while she was gone and gave the defendant her only key with instructions to "take care of the apartment" and make sure Angel came by every couple of days to feed the cat. She explained that about one year earlier, her daughters had misplaced the other keys to the apartment and only one was left. Ms Willan added that she did not want her daughters living in the apartment while she was away. She testified that she expected the defendant to stay at her apartment in her absence.
[8] Ms Willan stated that the defendant did not normally reside with her; he lived elsewhere with her other son, Adam. However, about two weeks before the execution of the search warrant, her sons "lost" that apartment. The defendant was living "here and there with friends" and stayed with Ms Willan two or three nights a week. He often came with Bianca. Adam Odette also stayed at her apartment in the weeks leading up to the execution of the search warrant and for part of this period he was ill and slept in her bedroom during the day. According to Ms Willan, her daughter's friends "came in and out of the apartment". She does not know the identity of all of them and was not always present when they visited. She confirmed that such people, along with all her children, could have access to her bedroom. Ms Willan has a friend named "Paul" who "sometimes stayed over and ended up in my bedroom". She stated that the last time he visited was at least "a couple of weeks" before the execution of the search warrant.
[9] Ms Willan testified that she does not work. She has no knowledge of drugs or guns in bedroom and would not allow them into the apartment. When asked why, she responded, "because that's my family". She stated that while Randy Lynn has used illicit drugs, she does not believe either daughter has had anything to do with cocaine or guns. Ms Willan described the desk as containing her "junk drawers" that she did not regularly pull out. She testified that she does not know anyone by the name of Daniel Therault. Although Ms Willan is obviously involved in the lives of her two daughters, she did not know if and where her sons worked and how they supported themselves.
Execution of the Search Warrant
[10] At 4:30 AM, shortly before the search warrant was executed, Adam Odette was observed to arrive at the apartment building. Surveillance had been maintained on the building from 7:30 PM the previous evening. At 5 AM, the police entered the apartment. The Durham Regional Police were assisted by the tactical unit of the York Regional Police. Officers with this unit wore helmets and bullet proof vests and entered with firearms ready to be discharged, if necessary. The door to apartment 103 was breached by means of a battering ram. Immediately before this was done, Cst. McCue shouted "police, search warrant". This officer was followed into the apartment by Cst. Reynolds who placed a "Noise Flash Diversionary Device" on the floor. These two York Regional Police officers secured the premises so that their Durham counterparts could search the premises.
[11] According to Cst. McCue, the door to the apartment opens to a living room, with an adjacent kitchen and sun room. A short hallway to the left of the door leads to three bedrooms. To proceed from any of the bedrooms to the living room, one must pass in front of the door. The first bedroom that is accessed from the hallway is the one belonging to Tracey Willan, the defendant's mother. Cst. McCue and Cst. Reynolds both testified that upon breaching the door and entering the apartment, they saw the defendant standing in the hallway outside that bedroom wearing red boxer shorts. Cst. McCue soon found two women and two children in a second bedroom. A third bedroom, in which there was a crib, was empty. Cst. Reynolds saw Adam Odette in the living room. It is agreed that the defendant and Bianca Allen had occupied the first bedroom, where the illicit items were found.
[12] The apartment was quickly secured and the search was commenced by Durham Regional Police. Cst. Aiello found a knife in the passage way between living room and kitchen. This is a prohibited weapon because of the manner in which the concealed blade springs open. Nearby this knife, the officer seized a Notice of Fine from Durham Region in the name of Adam Odette and a Rogers Invoice in the name of Kyle Willan. Both documents were addressed to 20-103 Harmony Road. Kyle Willan is also known as Kyle Odette, the defendant.
[13] Cst. Herron seized a health card in Adam Odette's name and two cell phones on a coffee table in the living room. An electrical bill in the name of the defendant, addressed to 136 Simcoe Street, Oshawa was located in the living room as well. He also found a wallet with identification in the name of Adam Odette and identification in the name of Daniel Therault in the sun room. The officer agreed with the suggestion by Defence counsel that a man so named has convictions for "drug trafficking and guns".
[14] Cst. Herron and Cst. Barrette searched the first room to be reached from the entrance door by means of the short hallway. This is Tracey Willan's bedroom. The officer noted that the bed was "un-made". He searched a desk at the foot of the bed. It had three drawers. He pulled each drawer out of the desk. On the floor, hidden under the third drawer, he located the two guns, box of ammunition, and bag of cocaine. A wallet containing the defendant's health card and credit card was observed in plain view on top of the desk, along with numerous other items, including an automotive insurance card in the name of Tracy Will addressed to 20-103 Harmony Road.
Applicable Legal Principles
[15] The standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence. The burden of proof rests on the prosecution. This does not mean proof to an absolute certainty but it does require more than proof that the defendant is probably guilty. A reasonable doubt is one that is logically connected to the evidence or absence of evidence. Moreover, this being a largely circumstantial case, I must be satisfied beyond a reasonable doubt, that the only reasonable inference to be drawn is that the defendant was in possession of the contraband.
[16] In addition to personal possession, the Criminal Code, in s. 4(3), provides for constructive or joint possession:
(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.
[17] "Possession" requires knowledge, consent, and some measure of control. A person with physical or personal possession of an item must know what the item is, consent to having it, and have some control over it: R. v. Sanghera [2012] B.C.J. No. 1009. Constructive possession, as set out above in section 4(3)(a) is complete where the defendant: (1) has knowledge of the character of the object, (2) knowingly puts or keep 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. Joint possession, within the meaning of section 4(3)(b) means the Crown must prove a person other than the defendant had possession with his knowledge and consent and that he had some measure of control over it: R v Morelli 2010 SCC 8.
[18] In this case there is no doubt the defendant had control of the place in which the guns, drugs, and ammunition were found and, therefore, over the contraband itself. His mother gave him the only key to the apartment, told him to take care of it while she was gone, and expected him to reside there. He was found in the apartment at the time the search warrant was executed. The issue to be determined is whether he had knowledge of the items in question.
[19] A gun is personal, like a wallet. It is not the type of thing the owner would leave behind in a place to which he/she does not have ready access and control. This point made in R v Balasuntharam [1999] O.J. No. 4861, a case in which four men were found in a car that none of them owned. An AK-47 rifle and two 17-round clips were found in a bag in the foot well of the cramped back seat and a loaded saw-off shotgun was in the trunk. The Court of Appeal noted that "This is a common sense case. ... As the trial judge observed, human experience tells us that property of this nature simply would not be the subject of unknowing possession". This might also be said of a significant quantity of cocaine. However, in the present case, the contraband was well hidden. As the Court of Appeal noted in R. v. Rawling, [1993] O.J. No. 1346 where a weapon is "not readily visible", knowledge cannot be inferred without direct or sufficient circumstantial evidence to satisfy the court that such an inference is the only reasonable one to be drawn from the evidence.
[20] In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R v McIntosh [2003] O.J. No. 1267. However, mere occupancy may not be enough to support such an inference: R v LePage, [1995] 1 S.C.R. 654. In this regard, one important circumstance to consider is the existence of personal papers and identification. This is illustrated by the decision of the Court of Appeal for Ontario in R v Emes, [2001] O.J. No. 2469:
In our opinion, Hill J. was correct in his appreciation of the admissibility and use to be made of the materials seized from the Nina Street and Darcel Avenue addresses that were central to the Crown's case against the appellant. He characterized the import and relevance of that evidence as follows:
• The seized documents in this case have relevance to a material issue - whether Mr. Emes had a sufficient connection to the Darcel Ave. apartment to permit the court to be satisfied, beyond a reasonable doubt, that the accused was in possession of the marihuana.
• The documents are effectively relevant for the fact of their existence as real or tangible evidence. The probative value relates to circumstantial inference-drawing apart from the truth of the contents of the seized documents: see Regina v. Lydon (1987), 85 Cr. App. R. 221 (C.A.) at 223-225 per Woolf L.J.; Regina v. Rice, [1963] 1 Q.B. 857 (C.C.A.) at 869-973 per Winn J., Ewart D., Documentary Evidence in Canada (1984), at pp. 20-21; Sopinka J., Lederman, S., Bryant, A., The Law of Evidence in Canada (1992), at p. 20.
After reviewing the items of evidence, Hill J. set out his reasons for accepting the seized documents as circumstantial evidence. He held that:
• Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here….
Having assessed the cumulative effect of the circumstantial evidence, Hill J. found that the only reasonable conclusion was that the appellant had knowledge and control of the marijuana at the Darcel apartment. In coming to this conclusion, he noted that the appellant did not testify or call evidence.
We can see no error in the reasons of the trial judge and, accordingly, the appeal is dismissed.
Analysis
[21] As noted, this is not a credibility case. In any event, I find all the witnesses, including the defendant's mother to be truthful and reliable. None of the witnesses were seriously challenged and none were contradicted by other evidence. Cocaine, two loaded handguns, and ammunition had been concealed underneath the bottom drawer of a desk in the bedroom normally occupied by the defendant's mother. To find and seize these items, a police officer removed the drawer from the desk.
[22] The Crown offers five reasons why the defendant should be fixed with knowledge of the cocaine, guns, and ammunition; the nature and value of contraband, the nature of the hiding place, the defendant's proximity to the hiding place, the degree of control he exercised, and the absence of any other reasonable explanation for how the contraband could have arrived where it did. The Defence points out that there is no direct evidence linking the defendant to the contraband, such as fingerprints, DNA, or evidence of trafficking. It is asserted that it would be dangerous to convict in this circumstantial case. Moreover, the Defence suggests there were others, including visitors, who had access to the bedroom and could have hidden the items under the desk drawer.
[23] A consideration of all evidence compels me to conclude that the defendant or his brother, Adam, hid the contraband in their mother's bedroom. The other possibilities are red herrings. In coming to this conclusion, I repeat that I accept the testimony of Ms Willan, including her assertion that she had nothing to do with the contraband and is unaware of such involvement by the two daughters who live with her. How likely is it that a friend of these teenage daughters would leave property of this kind in an intimate area of an apartment to which they do not have unrestricted access? How would a friend or visitor know Ms Willan did not regularly use the desk in question? The cocaine, handguns, and ammunition are not the type of property that one would leave unsupervised.
[24] These considerations also apply to Ms Willan's companion, "Paul". Moreover, even assuming he knew Ms Willan did not regularly access the drawer under which the contraband was concealed, why would he leave such valuable property for at least two weeks? I am also not distracted by the evidence about Daniel Therault. Although he has a relevant criminal record, apart from his identification being found in apartment, there is nothing to show he was ever there and, if so, when or for what purpose. Why would he hide this illicit property in the bedroom of a woman who stated she does not know him?
[25] The possibility that the aforementioned people are the owners or possessors of the contraband is so remote that I reject it entirely. Indeed, I am confident that the material in question was brought into the apartment within days preceding the execution of the search warrant with the intent that they be stored there for a short period of time. This conclusion is consistent with the nature of the property and the risk that Ms Willan might discover them in the long term. Accordingly, suspicion must fall on the five adults present in the apartment at that the relevant time. In addition to the defendant, this includes Adam Odette, Bianca Allen, Angel Willan and Randy Lee Coombs.
[26] I cannot accept the possibility that the three women are responsible. Would Bianca Allen arrive at the apartment with a sizable amount of cocaine, two loaded guns, a box of ammunition and a four year old child? Is it to be supposed that these items belong to Angel Willan, described by her mother as being "at a grade five level" and the mother of an infant? Could it be that the 16 year old Randy Lee Coombs possessed them? Why would any either daughter hide the property in their mother's bedroom, rather than their own? There is no direct evidence to support these possibilities and all reasonable inferences contradict them.
[27] It is not merely the process of elimination that points to the two men as culprits. It is also significant that Kyle and Adam Odette were without a permanent residence in the two weeks preceding the execution of the search warrant. It appears that for much of this time Adam Odette lived with Ms Willan and that the defendant did so two or three night per week. The latter also stayed with his girlfriend and other friends. Ms Willan described the defendant as "couch surfing". Both men, like Bedouins, would keep their valuables with them as they moved about. Given the options available it is understandable that both men would consider their mother's apartment as the safest place to store the contraband. The fact that the defendant occupied the bedroom where the contraband was found and that his wallet was on the desk under which they were concealed makes him a prime suspect. On the other hand, his presence in the bedroom that night is explained by the fact that it was the only available one he could share with his girlfriend. Moreover, Adam Odette had ample opportunity to conceal the contraband in his mother's room and it is noteworthy that he had convalesced there in the days preceding the events in question.
[28] As the person in control of the apartment, the defendant would be guilty if he brought the contraband to the bedroom or knew that his brother had done so. Both are reasonable inferences in this case. But there is another reasonable inference - that the Adam Odette hid the contraband without the defendant's knowledge. In the absence of direct evidence implicating the defendant, the realistic possibility of this third scenario is fatal to the prosecution.[1]
Result
[29] The Crown offered five reasons why the defendant should be found guilty. I accept the force of the first four arguments but not the fifth, namely, "the absence of any other reasonable explanation for how the contraband could have arrived where it did". I am confident that the defendant or his brother brought cocaine, two handguns and ammunition into their mother's apartment. However, whether it was one or the other or both has not been established on the criminal law standard.
[30] The charges are dismissed.
Released: March 5, 2013
Signed: "Justice J. De Filippis"
[1] This is not a comment of the Crown's decision to withdraw the charges against Adam Odette. My finding would be the same if he had remained a co-accused in this trial.