Court Information

Court File No.: Halton 11-2931 Date: 2014-12-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Junior Osas-Sol Ebagua

Before: Justice L.M. Baldwin

Heard: June 14, 2013; June 18, 2013; June 19, 2013; June 20, 2013; November 5, 2013; November 6, 2013; February 11, 2014; February 12, 2014; February 13, 2014; March 28, 2014; May 5, 2014; July 22, 2014

Reasons for Judgment released: December 11, 2014

Counsel:

• S. Collinson, for the Crown
• M. Hamalengwa, for the accused Junior Osas-Sol Ebagua

BALDWIN J.:

History of the Proceedings

[1] A Judicial Pre-Trial was conducted on September 28th, 2012 with counsel. Five days of trial time was estimated. Nine witnesses in total were indicated. No evidentiary rulings or Applications were noted.

[2] On June 14, 2013, a material witness warrant was issued. Counsel indicated it would be a two-day trial and the case was put over to June 18, 2013 to begin calling the evidence.

[3] The trial took eleven days to complete the evidence and hear submissions. Eleven witnesses were called. Twenty-eight Exhibits were filed.[1]

[4] This is yet another case where counsel have seriously underestimated the time it takes to finish a criminal case in Halton. Counsel's chronic inability to accurately estimate trial time has resulted in long split-up trials and numerous reserved delayed judgments.

[5] Junior Osas-Sol Ebagua stands charged that on or about the 12th day of September, 2011, at the Town of Milton, he did traffic in a substance included in Schedule II, to wit, Marihuana, contrary to Section 5(1) of the Controlled Drugs and Substances Act.

[6] On June 14, 2013, the Crown stated that the amount of marijuana was 85 grams, less than 3 kilograms.

[7] The charge is a straight indictable offence, within the absolute jurisdiction of the OCJ.

[8] There were no admissions in this case.

[9] At the end of 11 days of trial evidence, there was no doubt that Mr. Sheikh-Hussein was in possession of marijuana on September 12, 2011, in the professional interview room at the Maplehurst Correctional Institution. There was no doubt that Mr. Ebagua had signed in as a paralegal and visited Mr. Sheikh-Hussein within minutes of the drugs being found. This was all captured on video-tape filed as Exhibit #4 at trial. All of these matters could easily have been narrowed at the outset of the trial.

[10] Mr. Ebagua denied passing the drugs to Mr. Sheikh-Hussein in the professional interview room. Mr. Ebagua alleges a massive conspiracy against him, by unknown persons, possibly the guards at Maplehurst and/or Halton Regional Police, to frame him for this offence. The defence submits that Mr. Sheikh-Hussein is lying about the origin of the drugs. The defence theory is that Mr. Sheikh-Hussein had the drugs on his person before he entered the professional interview room to see Mr. Ebagua. The defence submits that Mr. Sheikh-Hussein derived a sentencing benefit in playing his part in the conspiracy.

[11] The drugs consisted of 8 Kinder Eggs full of marijuana (the marijuana weighed approximately 80 grams – which is just under 3 ounces); the 9th Egg was filled with tobacco.

Summary of the Testimony of Mohamed Sheikh-Hussein

[12] A material witness warrant was issued to compel Mr. Sheikh-Hussein's attendance at this trial.

His Circumstances

[13] Mr. Sheikh-Hussein (hereinafter referred to as Mr. S.-H.) was an inmate at the Maplehurst Correctional Institute at the time.

[14] Mr. S.-H. was incarcerated on September 12, 2011, on an outstanding robbery charge. He had been in custody since December 2010 on that matter.

[15] He has a criminal record which consists of the following:

• 2007-09-10 – Robbery – Suspended Sentence and Probation for 12 months;
• 2008-02-11 – Robbery – Suspended Sentence and Probation for 2 years (132 days of PSC);
• 2009-01-12 – Assault – Suspended Sentence and Probation for 15 months (92 days of PSC);
• 2012-04-12 – Robbery X 3 – 14 months and 2 days concurrent and Probation for 3 years (9 months & 28 days PSC);
• 2012-04-25 – Robbery with Violence & Disguise with Intent – 13 months concurrent with sentence serving on both.

[16] He was charged with possession of Marijuana for the Purpose of Trafficking in this matter. He pled guilty on January 10, 2013 and received one day on top of 5 months of time served. (p. 30, Exhibit #2 and Exhibit #29) He was released from jail on January 12, 2013. (p. 67)

[17] Mr. S.-H.'s lawyer on the outstanding Robbery charge was David Kolinsky – a Toronto lawyer.

[18] On September 12, 2011, Mr. S.-H. was advised that an individual was attending the jail to see him for a professional visit.

Arrangements for the Drug Delivery

[19] Mr. S.-H. knew that someone was going to come to the jail to visit him.

[20] An inmate inside his range told him that someone brings drugs to the jail for a fee and gave him a telephone number to call.

[21] He had made arrangements for the visit through the phones and through the people he spoke to when he was "outside". The arrangements were made about a month before the visit.

[22] "I just called my friends and (asked them to) prepare a package for me and then just drop it off to this paralegal and give him the money and then he's going to deliver it to me." (p. 14) He gave his friend the paralegal's number.

[23] Mr. S.-H. would not say who his friend on the outside was.

[24] His friend(s) owed him money.

[25] Mr. S.-H. testified that he paid $2,000.00 for the drug delivery. (p. 14) He was to receive around three ounces of marijuana. In the institution marijuana goes for $50.00 a gram. It cost $10.00 a gram on the outside. He was expecting nine Kinder Eggs full of marijuana and one Kinder Egg of tobacco. (p. 31)

[26] He was not planning on selling it. He expected to use it for himself for the next couple of months.

[27] The phone conversations were about when he was going to receive his package of marijuana.

[28] A paralegal was supposed to come to the jail and give it to him. This would not be his lawyer. (p. 13) He had no details about the person making the delivery. He had no name of the person.

Delivery of the Drugs

[29] On September 12, 2011, Mr. S.-H. was on the range playing cards and watching TV on Unit 9.

[30] The guard (Strickland) told him he had a professional visitor. He put on his orange jumper-suit which all the inmates must wear for a professional visit. He was expecting to be patted-down before he could leave the range. (p. 18)

[31] Mr. S.-H. testified that he was patted down before he was placed in the professional room. (pp. 24, 25)[2]

[32] He was taken to the professional interview room. The paralegal he was waiting for was in the room. He identified that paralegal as being Mr. Ebagua.

[33] Mr. Ebagua was sitting in the chair facing the door. The door had a window. Mr. S.-H. sat in the chair with his back to that door.

[34] There was no conversation between them. Mr. S.-H. testified that he was "trying to get his package and get out of there." (p. 22)

[35] Mr. Ebagua had a package that he handed to Mr. S.-H. under the table. Mr. S.-H. put the package in his boxer (shorts) and closed his jumper up. (pp. 21, 23)

[36] The package was the size of a small football. It was wrapped in a sock. He noticed that it was all duct-taped after the guard found it during the strip search. (p. 30)

[37] Mr. S.-H. banged on the door for the guard to take him back to his range. The interview room door cannot be opened from the inside.

[38] Mr. Ebagua was escorted out first. Then the correctional officer (Strickland) came in and strip searched him.

How Mr. S.-H. was Caught with the Drugs

[39] The same guard who had escorted him into the interview room (Strickland) came back in with his blue gloves and told him it would be a quick strip search. The guard told him that there has been marijuana found in the institution this past couple of weeks and they had been doing searches around the institution and that he was just a lottery pick. (p. 26)

[40] Mr. S.-H. testified that it was not common to be searched after a professional visit. (p. 26)

[41] "I took my jumpsuit off. I took my shirt off and my boxer, but then I realized – like at that point I got caught, so I just handed it to him. I took it out of my boxer and I gave it to him….he's going to find it anyways…" (pp. 26, 27)

[42] Mr. S.-H. testified that he got angry. He had been waiting for that stuff (drugs) and he wanted them. He asked the officer to let him off because it was just weed.

[43] The officer closed the door and called the white shirt/captain and the rest of the guards to show them what he had just found. He could hear them all talking in the next room.

[44] About a half hour later he was removed from the interview room and taken straight to segregation. He was in segregation for 30 days.

[45] Sometime during his first week in segregation the Halton Regional Police came to see him.

[46] He voluntarily provided HRP with a video-taped statement.

[47] He was charged with possession of Marijuana for the Purpose of Trafficking.

[48] He pled guilty to that offence on January 10, 2013, and received a sentence of one day on top of 5 months of time served.

[49] In cross-examination, Mr. S.-H. stated that he gave the video-taped statement to the police because he was caught "red-handed". (p. 35)

[50] This was his first time having his own marijuana in Maplehurst. Other inmates have had it.

[51] Mr. S.-H. repeated that he was patted-down by the guard before he entered the hallway with the metal detector.

[52] Mr. S.-H. denied that he was given the drugs before he saw Mr. Ebagua in the professional interview room.

"So, I walk around with 10 Kinder Eggs wrapped around with duct tape, which the jail – they have no duct tape – in a sock to go for interviews? Why am I going to interviews? He's not my lawyer. Why am I going to visit him...Why is he seeing me then?" (p. 47)

[53] The video-taped interview of Mr. S.-H. was played and entered as Exhibit #1.

[54] The interview was conducted by Detective Constable Verrette and Detective Shortt of the HRPS on September 13, 2011.

[55] (The officers had arrested Mr. S.-H. on September 12, 2011 for Possession for the Purpose of Trafficking. Mr. S.-H. was given his rights to counsel and cautioned and indicated that he was willing to give a statement. The officers told him they would be back the next day with video equipment to record his statement.)

[56] Mr. S.-H. testified that Mr. Ebagua had a hand briefcase with folders in it.[3]

[57] He had two brief conversations with Mr. Ebagua on the phone before the drug delivery was made. It was just to ask when he was coming. (p. 62)

[58] Mr. S.-H. repeated his evidence in-Chief and the contents of his video-taped statement to police:

"…I got caught red-handed. What you're trying to say is that your client never gave it to me. So surprisingly this football worth of marijuana dropped from the sky and I just walked into the interview whatever. But I'm honestly telling you the truth and there's nothing else I can say. Sorry…All I remember, honestly, is your client gave me that." (p. 64)

[59] Mr. S.-H. testified that he finished serving his robbery sentence on January 12th, 2013. (pp. 67, 68, 69)[4]

[60] Mr. S.-H. testified that he did not expect anything in return for giving his statement to the police in this matter.

[61] "I did cooperate. I fessed up. I got caught red-handed. What am I supposed to do, lie about it?' (p. 74)

Summary of the Testimony of Marc Strickland

[62] Officer Strickland has been employed as a correctional officer at the Maplehurst Correctional Institute since February 7th, 2003.

[63] On September 12, 2011, he was assigned to Unit 9 as the programs officer.

[64] His duties were to search the programs area (including the 3 professional interview rooms) at 8 o'clock in the morning to make sure that there has been nothing left behind in that area from the night before. (p. 83)

[65] After the inmates' cells are unlocked at 9:30 a.m., if there are any lawyers, professionals or police who have come to see an inmate, he will pull the inmate out of the range and escort the inmate into the interview room for the visit. He will wait outside the room and oversee the visit. When the visit is over he calls for another guard front desk/duty staff to escort the professional out.

[66] He strip searches all inmates after every professional visit and then he escorts the inmate back to the range.

[67] It is the duty staff who places the professional into the interview room. The professional can sit wherever they want in the room.

[68] He will then place the inmate in the interview room and he locks the door.

[69] Professionals get to have face-to-face visits with the inmates. Everyone else must visit the inmates upstairs behind glass.

[70] It was correctional duty/officer Quinn who provided him with a piece of paper that said a professional was here to see Mr. S.-H. He thinks the paper indicated that the professional was a lawyer.

[71] He went to the module officer and had the door to Mr. S.-H's unit opened.

[72] He went to the Wing Mr. S.-H. was in, held the door open, and yelled for him to come out. Mr. S.-H. was in the upstairs part of E-Wing at the time.

[73] Mr. S.-H. was wearing his prison-issued t-shirt and gym shorts. He came down the stairs and grabbed his orange coveralls/jumper that were lying on a table. Mr. S.-H. came outside of the Wing and put the coveralls on in front of Officer Strickland. The inmates must wear their coveralls into the professional interview.

[74] Officer Strickland asked Mr. S.-H. if there was anything in his pockets. Mr. S.-H. said no.

[75] Officer Strickland looked Mr. S.-H. up and down and did not note anything unusual. He was looking to see if there was anything tucked in his shorts, in his hands or in his socks. (p. 92) He saw nothing unusual.

[76] Officer Strickland did not deem it necessary to pat Mr. S.-H. down because he came out of the Wing only wearing his t-shirt and shorts. (p. 92)

[77] Officer Strickland escorted Mr. S.-H. down the hall leading to the programs unit. Mr. S.-H. proceeded through the metal detector in that hallway.

[78] Mr. S.-H. was placed in Interview Room number one.

[79] The person Officer Strickland thought was his lawyer was already in the room. He closed the door to the interview room and then sat in his chair that is in the hallway of the programs area.

[80] Approximately five minutes later, the interview was finished. Mr. S.-H. was placed in another locked programs room.

[81] The general duty officer was contacted to escort the professional out. They arrived three to five minutes later and the professional was escorted out.

[82] Officer Strickland then went into the programs room Mr. S.-H. was in and strip searched him.

[83] Officer Strickland does a strip search of every inmate after a professional visit. It does not matter who the inmate or the professional is. He is looking for contraband that comes into the Wing with inmates. Contraband does not come out of the Wing on inmates. (p. 99)

[84] "I asked for his shoes, I searched them. I asked for his coverall, I searched them. I placed them on the table, each time I searched an item. When I got down to his shorts, I asked for the shorts. Then he was in his boxers, I noticed a bulge in the front of his shorts." (p. 98)

[85] Mr. S.-H. was wearing two pair of boxers at the time. Officer Strickland testified that most inmates will wear three or four pair of boxers if they can.

[86] The bulge was in Mr. S.-H.'s crotch region. Officer Strickland asked for the object. Mr. S.-H. handed him the (non-prison issued) sock.

[87] "It was an object stuffed into a sock that was tucked inside his boxers." (p. 101)

[88] He told Mr. S.-H. to sit down at the desk.

[89] He began to remove the object from the sock and Mr. S.-H. began to plead with him: "Please, bro. It's just weed, bro. Please, bro, just leave it alone, bro." (p. 102)

[90] Officer Strickland told Mr. S.-H. to be quiet. He then removed the duct-taped package from the sock. He secured the room Mr. S.-H. was in. He took the package and secured it in the video remand room. Then he spoke to the captain of unit number 9, Mr. LaCoursiere, by phone.

[91] Mr. LaCoursiere immediately attended and he began to unwrap the package. Once the tape was removed, he saw nine Kinder plastic eggs. Each egg had a book of matches secured to the outside. The smell of marijuana was very evident. *(note: See Photo Exhibits #11, 12, 15-0 through to 15-N)

[92] Officer Strickland testified that in the last few years these Eggs have become very popular with inmates who put contraband up their rectums.

[93] Mr. LaCoursiere phoned the Security Manager, Darren Jones.

[94] Mr. Jones attended and watched as Mr. LaCoursiere and he put the eggs and everything into an evidence bag.

[95] Officer Strickland and Mr. Jones walked back to the room Mr. S.-H. was secured in.

[96] Mr. S.-H. was walked to segregation and placed in a cell.

[97] Officer Strickland testified that Mr. S.-H. did not have contact with anyone except the professional who had signed in as a lawyer – dark-skinned man wearing a suit – from the time he left the Wing until the drugs were found.

[98] In cross-examination, Officer Strickland repeated that there was no need to pat Mr. S.-H. down when he left the Wing area because he came out wearing his t-shirt and shorts. It is not uncommon for the inmates to leave their coveralls in the open Wing area.

[99] Officer Strickland had not viewed the video-tape of his interactions with Mr. S.-H. from that day. He did not think the camera would have captured Mr. S.-H. putting on his coveralls.[5]

[100] Officer Strickland had no knowledge of Mr. Ebagua before this incident.

[101] Officer Strickland testified that every so often Kinder Eggs are found in the jail.

[102] "Drugs are a natural part of jail. Guys go to court, they put small amounts up their rectum and then come back from court." (p. 9)

[103] It was 10:40 hours when duty officer Quinn advised him that there was a professional visitor to see Mr. S.-H. It was possibly 5 to 11:00 when he went to E Wing to get Mr. S.-H.[6]

Summary of the Testimony of Junior Osas Ebagua

[104] Mr. Ebagua was born July 6th, 1963 in Nigeria.

[105] He initially described himself as being single. Later in his testimony he referred to having a wife.

[106] He has 7 children.

[107] He is a Member of the Law Society of Upper Canada, paralegal status. He has no criminal record.

[108] He has an office at 800 Arrow Road, Unit Number 12, in North York. He practices alone.

[109] He absolutely denies taking any drugs into Maplehurst on September 12, 2011, or at any other time.

[110] He did go to see Mr. S.-H. on that date. He did not know Mr. S.-H. before.

[111] One of his clients, Ameer El-Khashab, told him about Mr. S.-H. on the phone.

[112] "I made arrangement that I said one time, maybe one day I will see you. I ask him on the phone that time. He said, told me that his case is a long one and that it won't be getting to court until maybe December, or something, if I remember correctly." (p. 48)

[113] Mr. Ebagua testified that as a result of false information on his CPIC he has been the victim of "a massive conspiracy". (p. 52)

[114] Mr. Ebagua testified that from March 2011 until September of 12, 2011, he made professional visits to Maplehurst 30 to 40 times. None of his clients were found in possession of drugs.

[115] Mr. Ebagua described his five- to seven-minute visit with Mr. S.-H. as follows:

"The only reason why I did not stay that long with Mr. Hussein is because when he told me – what they told me on the phone is that he had some traffic and insurance matters. But when I got there he was telling me about some armed robbery, and I told him no, I don't do those kind of things. That's one. And then number two, I said for me to continue to do anything for you I want money. And then he told me that the mother was going to pay me money, that's it. And the mother never ever contacted me. I didn't talk to, say anymore." (p. 61)

[116] In cross-examination, Mr. Ebagua testified that he has practiced as a paralegal since 2002. He received his licence to practice as a paralegal in 2009.

[117] Mr. Ebagua testified that his practice concentrates on Highway Traffic Act matters, Criminal Code matters where the Crown has proceeded summarily, summary conviction matters and bail hearings. He is aware that he cannot represent a client on indictable matters.

Q. So you were conscious of the rules and regulations as they relate to paralegals?

A. As they relate to the Law Society of Upper Canada, integrity, natural justice, interest of justice, judicial coding, happiness. In fact, maintaining the status quo of the integrity of the Law Society of Upper Canada was my goal." (p. 4)

Q. And you would agree with me, sir, that among the privileges that are extended to licensees of the Law Society of Upper Canada, are certain indulgences that are accorded to those licence holders at correctional institutions?

A. Definitely, not just – I put it the rights of clients. I'll narrow it down to say the rights of clients as it relates to common sense, prevalence of natural justice, and the integrity and the interest of your client matters, and your conduct – and how would I put it – due diligence.

Q. And within correctional institutions, licensees are able to meet with individuals in a fashion different than general members of the public?

A. Not only in the correctional institution. In court also, they have the ability to do so.

[118] Exhibit #3 sets out the dates Mr. Ebagua visited inmates in a professional capacity between March 13th and September 12, 2011.[7]

[119] On May 27th, 2011 Mr. Ebagua had a discipline hearing before the Law Society of Upper Canada.

[120] Mr. Ebagua agreed that effective that day, he was suspended for a period of one month commencing immediately that day and to continue indefinitely until he replied to their request for information to the satisfaction of the Director of Professional Regulation. (p. 9)

[121] Mr. Ebagua did not agree that as a suspended paralegal he was not allowed to exercise his right to visit clients in the professional interview rooms in the institutions. Mr. Ebagua maintained that the Law Society had instructed him to communicate his suspended status to his clients.

[122] Mr. Ebagua testified that he used his paralegal card to see inmate Eden Walter Hamilton in Maplehurst on Saturday May 29, 2011; Mustafa Yousof Omar on Sunday May 29, 2011; Mustafa Omar again on Thursday June 23, 2011; Mustafa Omar once again on Saturday June 25, 2011 (Exhibit #3)

[123] Mr. Ebagua testified that the Law Society had lifted his suspension after 30 days when he saw the remaining 16 inmates listed in Exhibit #3 during the months of July, August and September 2011.

[124] Mr. Ebagua did not agree that Exhibit #23 – Law Society of Upper Canada v. Junior Osas Ebagua, 2011 ONLSHP 139 – prohibited him from seeing inmates face to face in institutions.

[125] Mr Ebagua did not agree with the accuracy of Exhibit #22, an E-mail dated November 6, 2013, addressed to the Crown Attorney by Laurel Bogden, Administrative Assistant, Regulatory Inquiries, The Law Society of Upper Canada, which reads as follows:

According to our records Junior Osas Ebagua was found guilty of professional misconduct with respect to Notice of Application PCN49/11. The hearing panel ordered that he be suspended for 1 month commencing immediately and to continue indefinitely until he replied to requests for information to the satisfaction of the Director of Regulation…Our records indicate that Mr. Ebagua was suspended and unable to practice or provide legal services from May 27, 2011 to August 30, 2011. He returned to practice on August 31, 2011 and practiced until October 23, 2011. He became administratively suspended on October 24, 2011 due to not providing proof of insurance, then returned to practice on November 7, 2011.

[126] Mr. Ebagua testified that he could not remember what his financial situation was between May and September 2011.

[127] Mr. Ebagua disagreed with the Crown's suggestion that his suspension from the Law Society caused him financial difficulties. (p. 12)

[128] Mr. Ebagua could not remember why he met with the inmate named Ameer El-Khashab on Sunday July 14, 2011 and again on Monday July 25, 2011. (p. 18) He may have been a potential client. (p. 21)

[129] Mr. Ebagua stated that he was on the phone with El-Khashab when Mr. S.-H. got on the phone. (p. 24)

[130] Mr. Ebagua could not say how many times he spoke to Mr. S.-H. on the telephone.

Q. So, in these conversations, he just told you his name and asked you to see (him) at Maplehurst?

A. I guess so. (p. 28)

[131] Mr. Ebagua agreed that he had never met Mr. S.-H., or Officer Verrette before. He had no problems/issues with them or any of the staff at Maplehurst prior to September 12, 2011.

[132] Mr. Ebagua was asked many questions about his concerns with his CPIC. I have determined that this area is irrelevant to the issue before the Court. Therefore, I will not be summarizing this area of the testimony.

Other Witnesses Who Testified at Trial

Darren Jones

[133] Has been employed at Maplehurst since 2000. He is a sergeant who works in the security department. He dealt with the drugs as discussed above in Officer Strickland's testimony. He took the Court through all the video clips from Maplehurst relevant to this incident.

[134] In cross-examination, Officer Jones was asked if the drugs could have been on Mr. S.-H.'s person when he left the Wing before he had the professional visit with Mr. Ebagua.

[135] Officer Jones answered as follows:

"This was such a large item, that inmates aren't going to bring this out of their room. They're going to leave it in their locked cell when they come out of their cell…if they're going to (give) it hand to hand, they're going to break it down. They're going to break one Kinder Egg into another Kinder Egg and hand it off person-to-person. They're not going to carry that large item in the dayroom with them. (pp. 86, 87)

[136] Officer Jones testified that an inmate would not bring such a large quantity of contraband into the dayroom. That would cause fights and money problems. (p. 85)

[137] Officer Jones described the clothing inmates are issued in the institution. He testified that inmates do not wear any other clothing but their own for hygiene reasons.

[138] In his experience, it is more common to search an inmate after a professional visit than it is before. (p. 101)

Marc LaCoursiere

[139] He has been employed as a correctional officer for 36 years. He has been employed at Maplehurst for 25 years.

[140] On September 12, 2011, he was the operations manager for Unit 9.

[141] The witness repeated all the steps involved for professional visitors and inmates at Maplehurst.

[142] Photographic Exhibits of all seized items were entered through him.

[143] The continuity of all items seized was explained. Continuity was not in issue at the end of trial.

David Shortt

[144] Detective Constable Shortt has been an officer with the HRPS for 30 years.

[145] He is of one of three liaison officers assigned to Maplehurst.

[146] Sergeant Darren Jones called him on September 12, 2011, regarding this matter.

[147] He was advised that a correctional officer had searched an inmate and discovered a significant amount of drugs and requested that police should respond right away.

[148] Together with Detective Constable Verrette, he drove from 12 Division in Milton to Maplehurst and met with Sergeant Jones and Correctional Officer Strickland. They arrived at 11:48 a.m.

[149] The HRPS officers were briefed on the circumstances of how the drugs were found on Mr. S.-H. and they viewed and later took control of the seized items.

[150] The visitor's log indicated that the paralegal who had visited Mr. S.-H. was Junior Ebagua.

[151] He arrested Mr. S.-H. for Possession for the Purpose of Trafficking in Marijuana. He was provided with rights to counsel and cautioned. It was agreed that a video-taped statement would be taken the next day, and it was, from 10:05 a.m. to 10:35 a.m. He monitored the interview.

[152] Back at the station the tobacco was weighed at 10.4 grams. The total contents of the 8 Kinder Eggs that contained marijuana weighed 75.3 grams. (pp. 106, 107)[8]

[153] He testified that there were no smooth surfaces on this package to lift any fingerprints from. (p. 120)

Ryan Eacrett

[154] He is an officer with HRPS assigned to the Integrated Drugs, Guns and Gangs Unit.

[155] On September 13, 2011, he was briefed by all the relevant parties about this case. He took custody of the 8 Kinder Eggs filled with marijuana and the 9th Egg filled with Tobacco.

[156] He weighed the total amount of marijuana to be 81.6 grams. (p. 11)

"So I have three exhibits total. Exhibit Number 1 which contained 6.7 grams of marijuana was sent to Health Canada in envelope number C0030181, the second sample which I sent to Health Canada that contained 6 grams of marijuana was sent in envelope number C0030182, and the third exhibit which contained 68.9 grams of marijuana and remained at (the) drug vault in envelope C0030183."

Bernard Verrette

[157] Detective Constable Verrette has been a police officer since 2000, employed with HRPS since 2008.

[158] He is a liaison officer with Maplehurst.

[159] He attended Maplehurst on September 12, 2011, with Detective Constable Shortt with respect to this matter.

[160] He repeated all the testimony previously referred to.

[161] He conducted the interview with Mr. S.-H. on the 13th when he had audio equipment with him.

[162] Mr. S.-H. was not promised anything in exchange for his statement.

Monica Doman

[163] She is an exhibits officer with HRPS.

[164] She testified as to the continuity of various Exhibits which was not an issue at the end of the trial.

Cyndi Ngo

[165] She is a drug analyst with Health Canada.

[166] She examined the samples of drugs taken from the Kinder Eggs in this case. The samples contained cannabis marijuana.

Position of the Parties

Defence

[167] Counsel submits that Mr. S.-H. could have been carrying around this package of drugs for days before he met with Mr. Ebagua in the professional interview room. Counsel submits that there is a bulge in Mr. S.-H.'s crotch area of his orange jumpsuit as he is seen walking to the interview room in Exhibit #4.

[168] Counsel submits that there is a conflict in the testimony of Mr. S.-H., who says he was patted down before he went into the programs area, and officer Strickland, who says he did not pat Mr. S.-H. down.

[169] Counsel submits that there was no fingerprinting of the drug package and, therefore, no forensic evidence to link Mr. Ebagua to the drugs.

[170] Counsel submits that Mr. S.-H. received the "red-carpet" treatment when he was sentenced for Possession for the Purpose of Trafficking on January 10, 2013.

[171] Counsel submits that he was not given any additional jail time based on Mr. S.-H.'s trial evidence that he was still serving the Robbery sentence.

[172] Counsel submits that the officers' times are different from the time shown on the Maplehurst videos, and that difference should affect the overall reliability of all of their evidence.

[173] Counsel submits that no bulge is observed on Mr. Ebagua as he is seen entering the programs area on the video.

[174] Counsel submits that Mr. Ebagua has denied taking drugs into Maplehurst, and that he has been the victim of a conspiracy.

Crown

[175] The Crown submits that Mr. S.-H. received no benefit for providing a statement to the police.

[176] When he was sentenced on January 10, 2013, the Crown asked for more jail time than Justice Zisman imposed. Exhibit #29 makes it clear that Justice Zisman considered 5 months of pre-trial custody as the appropriate sentence.

[177] Further, the guilty plea was entered before Mr. S.-H. testified at this trial. His cooperation at trial was not a factor in the sentence he received.

[178] The Crown submits that Mr. S.-H. was consistent in both his video-taped statement to the police and his testimony at this trial. The Crown submits that his evidence is reliable and credible and consistent with all the other evidence.

[179] The Crown submits that there is no testimony to support defence counsel's submission that there is an unusual bulge in Mr. S.-H.'s crotch area when he is observed entering the programs area. Mr. S.-H. was visually inspected by Officer Strickland when he was still in his underwear before he entered the area.

[180] The Crown submits that there is no evidence of animus on the part of Mr. S.-H., the Maplehurst guards or the HRPS toward Mr. Ebagua and the massive conspiracy theory of the defence should be rejected.

[181] The Crown submits that Mr. Ebagua was a non-responsive witness and his testimony should be rejected.

Analysis

[182] I have applied the 3-pronged test set out in R. v. WD in assessing the evidence in this case.

[183] I agree with the submissions of the Crown.

[184] There is direct evidence from Mr. S.-H. that Mr. Ebagua handed him the sock filled with drugs when they were alone in the locked professional interview room at Maplehurst. I accept as reliable and true Mr. S.-H.'s evidence on the ultimate issue firstly, because it is consistent with all the other Crown evidence in this case, and secondly, because Mr. S.-H. had nothing to gain from implicating Mr. Ebagua in this offence.

[185] Almost immediately upon being strip searched, Mr. S.-H. was escorted to segregation where he stayed for 30 days.

[186] Mr. S.-H. was mistaken when he testified at trial that he was still serving his Robbery sentence on January 10, 2013, when he received credit for 5 months of pre-trial custody for his part in this criminal offence. That is evident from the guilty plea and sentencing transcript marked as Exhibit #29 at this trial.

[187] Mr. S.-H. testified after he had been sentenced.

[188] His trial evidence was consistent on all major points with the video-taped statement he gave to police on September 13, 2011.

[189] It was a paralegal he was expecting to bring him the drugs. It was a paralegal that delivered those drugs.

[190] Mr. S.-H. had no prior dealings with Mr. Ebagua. Mr. S.-H. was represented by a Toronto lawyer on his outstanding Robbery charge. There was absolutely no reason for a paralegal, unrelated to his lawyer, to be visiting him in the jail about this straight indictable offence.

[191] Mr. Ebagua's claim, that he was visiting Mr. S.-H. because of an insurance matter, was not put to Mr. S.-H., contrary to the rule in Browne and Dunn. I reject Mr. Ebagua's evidence.

[192] I find that Mr. Ebagua had an exclusive opportunity to pass the drugs to Mr. S.-H. in the jail.

[193] Mr. Ebagua abused his paralegal status to gain access to an inmate he was not representing to pass drugs to him in the jail.

[194] I find as a fact that Mr. S.-H. did not enter the interview room with the drugs stuffed in his boxer shorts.

[195] Exhibit #4 shows Officer Strickland looking Mr. S.-H. over when he is in his boxer shorts. The officer watches as he puts his coveralls on. Any bulge in the crotch area of his coveralls would be due to his 2 layers of underclothes.

[196] It is obvious that the drugs were in their original packaging and had not been opened up. Once they were, the smell of marijuana was evident. I reject the submission that Mr. S.-H. could have been walking around the open range with these valuable drugs stuffed in his boxer shorts. I accept Sergeant Jones' evidence that inmates would not do this as it would be dangerous. Inmates keep their drugs hidden, often in their rectums, as the Kinder Eggs used in this case were designed for.

[197] Mr. S.-H. was pretty anxious to get these drugs. It makes common sense that he would have opened that package up as soon as he got the chance, hidden his stash, and used the drugs. He would not be walking around for hours and days with that package stuffed in his boxers.

[198] Mr. S.-H. was in error when he testified that he was patted down by Officer Strickland before the professional visit. The officer has explained why he did not do this.

[199] Mr. S.-H. was also in error when he testified that it was not common for inmates to be searched after professional visits. This error is, of course, how he was caught with the drugs.

[200] Even without the direct testimony of Mr. S.-H., the Crown has presented a compelling circumstantial case.

[201] I reject the testimony of Mr. Ebagua. It was nonsensical and paranoid in content.

[202] Mr. Ebagua had no right to be visiting inmates in a custodial institution as a suspended paralegal between May 27, 2011 and August 30, 2011. Exhibit #3 shows that he made 19 professional visits to Maplehurst during this time period.

[203] I find as a fact that Mr. Ebagua abused his position as a paralegal to deliver drugs to Mr. S.-H. for his personal profit.

[204] There was no massive conspiracy directed at Mr. Ebagua.

[205] The Crown has proven this case beyond a reasonable doubt.

[206] Accordingly, a conviction is registered.

Released: December 11, 2014

Signed: "Justice L.M. BALDWIN"

Footnotes

[1] The Transcript dated January 10, 2013 of Mr. Sheikh-Hussien's guilty plea is now marked as Exhibit # 29.

[2] This is contrary to what is captured on video-tape Exhibit #4.

[3] See Exhibit #4 – Mr. Ebagua is seen carrying some file folders.

[4] See Transcript of the Guilty Plea and Sentencing – Exhibit #29

[5] Exhibit #4 shows Officer Strickland standing looking at Mr. S.-H. as he is putting on his coveralls.

[6] Times are captured on Exhibit #4

[7] Exhibit #3 shows that on Monday September 12, 2011 at 10:36 Junior Ebagua signed in to Maplehurst as a paralegal to see Mohamed Sheik-Hussein. He signed out at 11:30.

[8] This differs from Officer Eacrett's evidence that the marijuana weighed 81.6 grams.