Information and Parties

Information No.: 14-14482-01/02/03/04

Ontario Court of Justice

Her Majesty the Queen

v.

Luther Derouche, Kneildeen Fagan, Randy Maharaj, Shawn Williams

Reasons for Judgment at the Preliminary Inquiry

Before the Honourable Justice M.S. Felix

Monday, April 18, 2016

at Oshawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE M.S. FELIX, ONTARIO COURT OF JUSTICE, DATED JULY 27, 2015

Appearances

• D. Wilson – Agent for the Federal Crown
• M. Strathman – Counsel for Luther Derouche and Shawn Williams
• C.S. White – Counsel for Kneildeen Fagan
• D. Holt – Counsel for Randy Maharaj

Table of Contents

"PROJECT DOMINION"

• Introduction
• Procedure at the Preliminary Inquiry
• Organization of this Judgment
• The Case Against Kneildeen Fagan
• Kneildeen Fagan and the Markham Road Residence
• Kneildeen Fagan and his Connection to DILLINGHAM
• Kneildeen Fagan – Tracking Warrant Evidence
• Conclusion – Kneildeen Fagan and DILLINGHAM
• DILLINGHAM – A Storage Location and Production Facility for Drugs
• Large Amounts of Drugs Were Stored at DILLINGHAM
• Drugs Were Manufactured at DILLINGHAM
• Was DILLINGHAM Merely a "Front"
• Fagan, Williams, and Maharaj: Their Connection to DILLINGHAM
• Conclusion – Inferences Concerning DILLINGHAM
• Possession for the Purpose of Trafficking at DILLINGHAM
• Ownership of DILLINGHAM
• The Layout of DILLINGHAM
• Value of Drugs
• Keys and Control
• Possession
• Williams – Possession of Ammunition

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE M.S. FELIX, ONTARIO COURT OF JUSTICE, DATED JULY 27, 2015

Reasons for Judgment

FELIX, J. (Orally):

Introduction

[1] Over a period of just under three months, between September 3rd, 2014 and November 20th, 2014, the Durham Regional Police Service investigated cocaine traffickers in the Greater Toronto Area and Durham Region. The initiative focused on the activities of Kneildeen Fagan [FAGAN] after the police received information that he was involved in drug trafficking.

[2] At the outset of the investigation, FAGAN was the primary focus of the police investigation because on several occasions he trafficked in crack cocaine, cocaine and weapons to an undercover police officer. As the investigation developed, the focus encompassed others apparently associated to Mr. FAGAN including Luther Derouche, Randy MAHARAJ [MAHARAJ], and Shawn Williams [WILLIAMS].

[3] Mr. Fagan and Mr. Derouche are committed for trial on all counts on consent. The record placed before this court amply demonstrates the basis for committal concerning these two defendants.

[4] WILLIAMS and MAHARAJ are charged with possession of cocaine for the purpose of trafficking focused on two dates; November 13th, 2014 – and when I say November 13th in this judgment, I am encompassing November 14th as well - and November 20th, 2014. WILLIAMS is also charged with possession of ammunition contrary to a prohibition order. These defendants resist committal for trial.

[5] The trafficking case against MAHARAJ and WILLIAMS focuses on their association with a commercial business location at 905 DILLINGHAM, Unit 16 [DILLINGHAM].

[6] For the limited purposes of the preliminary inquiry, the expert opinion in support of possession for the purpose of trafficking is not in issue. A police expert testified and filed a report in support of this evidence.

[7] The focus at the preliminary inquiry concerns the issue of possession.

[8] There is no evidence of personal possession on the part of either defendant. The federal prosecutor submits that as against both defendants, the circumstantial evidence supports an inference of possession in relation to drugs and items ancillary to the manufacturing of drugs at DILLINGHAM. The defendants admit, for the limited purposes of the preliminary inquiry, that based on the amount of drugs and ancillary items found at DILLINGHAM, a jury could infer that whoever possessed the items did so for the purpose of trafficking. However, the defendants assert that the circumstantial evidentiary record does not logically or reasonably support an inference that either defendant possessed the drugs and ancillary items at DILLINGHAM.

[9] There is some evidence concerning circumstances at a residence associated to WILLIAMS, on Markham Road, including frequent short meetings with persons akin to hand-to-hand type drug transactions and frequent visitors at his unit. The police did not see actually drugs change hands during these meetings. Also, not surprisingly, the police did not immediately arrest the participants for what they perceived to be street level trafficking when the focus of the investigation was trafficking by FAGAN at the ounce or multi-ounce level. I am satisfied that the main focus of liability concerning Mr. Williams must concern the events at DILLINGHAM.

[10] Having regard to the evidentiary record before me, I am satisfied that a jury could, not would, fix both MAHARAJ and WILLIAMS with possession of the drugs and ancillary items at DILLINGHAM on both November 13th, 2014 and November 20th, 2014.

[11] I am not satisfied that the evidentiary record supports a reasonable inference that WILLIAMS possessed ammunition in contravention of his prohibition order.

Procedure at the Preliminary Inquiry

[12] The federal prosecutor applied to admit the evidence pursuant to Section 540 of the Criminal Code of Canada. This application was granted on consent. The material is filed as Exhibit 1 in these proceedings. It spans some 77 typed pages with numerous hypertext links to the voluminous supporting evidence including police notes, videos, and photographs. The material was provided ahead of time on consent and as such, I have had many hours outside of court to review the material.

[13] As the Section 540 material comprehensively documents the investigation and the evidentiary record placed before me, I will not detail and parrot back the minutia. My goal in this judgment is to emphasize summarization of the material and my assessment of the evidence for the benefit of the parties. The record is available to any reviewing court for their comprehensive review as well.

[14] At times I permitted the absence of certain defendants and/or their counsel during protracted proceedings. This was at the request of any particular defendant, with the consent of the prosecutor, and on the express understanding that all of the evidence at the preliminary inquiry was receivable against the defendants despite their absence.

Organization of this Judgment

[15] This judgment is organized into several parts.

[16] First of all, I will begin by setting out a summary of the case against the main target, FAGAN. This is an important first step because FAGAN was the focus of the investigation. He is also jointly charged with these defendants in relation to the November 13th allegations. It is clear that the police encountered the other defendants through their investigation into FAGAN. The liability of MAHARAJ and WILLIAMS is connected to their interaction and association with FAGAN, and the actions of all three individuals at DILLINGHAM.

[17] Second, I will explain why the evidence supports an inference that DILLINGHAM was a location where drugs were being stored and drugs were being manufactured. This is important context to the evidence concerning the defendants' association with DILLINGHAM.

[18] Third, I will explain why the evidentiary record supports a conclusion that WILLIAMS, MAHARAJ, and FAGAN had a significant connection to DILLINGHAM during the relevant time period.

[19] Finally, I will address why the evidentiary record as a whole, in context, supports an inference fixing WILLIAMS and MAHARAJ with possession of the drugs and ancillary items at DILLINGHAM and thereby supports committal.

The Case Against Kneildeen FAGAN

[20] I am obligated to consider all of the evidence placed before me. The evidence concerning FAGAN was contained in the Section 540 Application. This material was not addressed by the parties to any great degree during the viva voce evidence at the preliminary inquiry.

[21] The case against FAGAN is crucial to understanding the focus of the police investigation. The Durham Regional Police Service received information that a person, later revealed to be FAGAN, was engaged in drug trafficking. Once identified, the police investigation developed such that FAGAN was introduced to an undercover police officer. The Section 540 Application provides a detailed account of the investigation into FAGAN that I will not repeat. In summary however, he engaged in communications with the undercover officer regarding drugs and weapons on many, many days. These conversations were interspersed with sales of narcotics to the undercover police officer. FAGAN also sold firearms to the undercover officer.

[22] Specifically, FAGAN sold large amounts of cocaine and crack cocaine to the undercover police officer on the following dates:

• September 3rd: 14 grams of crack cocaine
• September 11th: 29 grams of crack cocaine
• September 18th: 29 grams of crack cocaine
• September 30th: 29.5 grams of crack cocaine
• October 8th: one ounce of cocaine
• October 14th: four ounces of cocaine
• October 23rd: 116.5 grams of cocaine and 30 grams of cutting agent
• November 6th: 55 grams of cocaine
• November 18th: 114 grams of cocaine

[23] When FAGAN was arrested, he had a quantity of crack cocaine and cocaine on his person.

[24] Given the amounts involved and the ease with which FAGAN produced weapons and drugs, it is not difficult to understand why he was the main focus of the police investigation.

Kneildeen Fagan and the Markham Road Residence

[25] The police conducted surveillance on the Markham Road residence of WILLIAMS because, I infer, FAGAN led them to that address.

[26] The 540 Application and the evidence at the preliminary hearing documents suspicious activities at the Markham residence. A reasonable person could easily conclude that suspicious activity was occurring at this residence. The police took care to attempt to document this suspicious activity by augmenting their observations with photographs and video capture of some of the activity. In summary, a procession of individuals and vehicles attending the Markham residence during the timeframe of police observation was presented. Often these attendances were for short periods of time. Some of the interactions could support a belief that hand-to-hand type street level drug transactions were occurring.

[27] The evidentiary record also supports the observation that on some of the occasions that FAGAN sold drugs to the undercover officer, he had either left from the Markham residence or attended there after the sale. For example, on the September 30th sale, FAGAN left the Markham residence and drove directly to a location to sell crack cocaine to the undercover officer and then returned to the residence shortly thereafter. On October 14th, FAGAN spent almost two hours at the Markham residence before leaving with a white bag. A short time later, he sold drugs to the undercover officer contained within a white bag at a McDonalds. On October 23rd, FAGAN was at Markham Road for over an hour before leaving to traffic to the undercover officer.

Kneildeen Fagan and his Connection to DILLINGHAM

[28] More substantial and probative to this proceeding is FAGAN's attendance at DILLINGHAM and his association with WILLIAMS and MAHARAJ at those premises.

[29] For reasons I will expand upon in this judgment, the circumstantial evidence admits of a reasonable and logical inference that DILLINGHAM was a location where crack cocaine and cocaine were being stored for the purpose of trafficking. The evidence also supports an inference that drugs were being manufactured within DILLINGHAM.

[30] On November 4th, FAGAN attended DILLINGHAM at 7:38 p.m. It is reasonable to assume that he met with WILLIAMS there as WILLIAMS was inside DILLINGHAM as of 6:34 p.m. At 7:47 p.m., I am prepared to find that MAHARAJ attended DILLINGHAM as well.

[31] On November 4th, WILLIAMS was observed examining something in his trunk area and carrying a white box into the premises. MAHARAJ exited the premises and entered his vehicle on two occasions. FAGAN left at 8:06 p.m., WILLIAMS at 8:32 p.m., and MAHARAJ was the last to leave at 10:43 p.m.

[32] On November 5th, 2014, WILLIAMS arrived at DILLINGHAM at 11:53 a.m. Unknown persons attended with a grey gift bag. Just before 2:00 p.m. FAGAN arrived and was observed knocking at the main door to gain entry.

[33] On November 6th, WILLIAMS was observed at DILLINGHAM. FAGAN engaged in a drug transaction with the undercover officer, selling 55.5 grams of powder cocaine and then went to DILLINGHAM where WILLIAMS was already located. Later on, MAHARAJ attended the premises.

Kneildeen Fagan – Tracking Warrant Evidence

[34] In addition to the surveillance observations made by the police at DILLINGHAM, there is substantial evidence upon which a jury could find that FAGAN attended on other occasions when he was not necessarily observed by the police.

[35] On September 18th, 2014, a tracking device was installed on FAGAN's vehicle.

[36] His vehicle was at DILLINGHAM during the following time periods (See Dominion Tracking Summary):

• November 3rd, 2014: 11:02 p.m. to 5:26 a.m.
• November 4th, 2014: 7:38 p.m. to 10:30 p.m.
• November 5th, 2014: 2:01 p.m. to 4:58 p.m.
• November 6th, 2014: 5:49 p.m. to 8:35 p.m.
• November 8th, 2014: 00:16 a.m. to 1:52 p.m.
• November 17th, 2014: 12:26 p.m. to 1:05 p.m.; 1:11 p.m. to 2:46 p.m.; 9:07 p.m. to 11:21 p.m.
• November 18th, 2014: 8:55 p.m. to 11:27 p.m.

[37] Later in this judgment, I will detail the substantial evidentiary record linking FAGAN, WILLIAMS, and MAHARAJ to DILLINGHAM including evidence from which one could infer that they are together within the premises.

Conclusion – Kneildeen Fagan and DILLINGHAM

[38] A number of specific inferences or conclusions concerning FAGAN are available on the evidentiary record at the preliminary inquiry:

• FAGAN was a cocaine and crack dealer on the multi-ounce level;
• FAGAN was able to continually resupply the undercover officer as he sold large amounts of cocaine and crack on multiple occasions over a three-month time period;
• FAGAN had access to other properties that were being used for storage or production of drugs, for example, Brian Harrison Way; and
• That a multi-ounce level dealer would have multiple customers and multiple locations supporting his drug enterprise is at least an available inference.

[39] As such, FAGAN's attendance at DILLINGHAM and his association with MAHARAJ and WILLIAMS is significant. This background and context informs the considerations concerning DILLINGHAM. It is part of the record before me and supports my finding that the evidentiary record permits an inference that DILLINGHAM was a location where crack cocaine and cocaine were stored for the purpose of trafficking as well a location where drugs were being manufactured.

DILLINGHAM – A Storage Location and Production Facility for Drugs

[40] The prosecution submits that the evidence reasonably supports a conclusion that DILLINGHAM was a front. It existed simply for the purpose of storing drugs and manufacturing drugs for the purpose of trafficking.

[41] MAHARAJ, for the limited purposes of the preliminary inquiry only, properly concedes that DILLINGHAM was a place where drugs were being stored. Mr. Williams does not concede this point. So I will analyze this evidence.

[42] I do not agree that the evidence supports a finding that DILLINGHAM's only purpose was as a front for drugs; However, I am satisfied that the circumstantial evidence and other evidence provides a solid foundation for two inferences: (i) that DILLINGHAM was a place where large amounts of drugs were stored; (ii) DILLINGHAM was a place where drugs were manufactured.

Large Amounts of Drugs Were Stored at DILLINGHAM

[43] This reasonable inference is easily drawn based on all of the evidence contained within the Section 540 Application and the witness evidence at the preliminary inquiry. Particularly probative is the fact that on two separate occasions, the police found and documented large amounts of drugs within the premises at DILLINGHAM.

[44] On November 13th, 2014, the police executed a general warrant and documented the drugs and other related paraphernalia within, including:

• A large Tupperware chest containing multiple clear bags of white powder cutting agent;
• A number of gift bags hanging from a clothing rack. One gift bag contained three Ziploc bags with cocaine weighing 706 grams, 144 grams, and 207 grams;
• Another gift bag contained 29 grams of crack cocaine;
• A black garbage bag hanging from a work bench had wrapping consistent with a kilogram size package of cocaine that tested positive for cocaine;
• A digital scale and bowls that appeared to contain a white powder residue; and,
• Various empty Ziploc bags that were retrieved from the garbage.

[45] As I will outline further in this judgment in a moment, this warrant was executed two hours after MAHARAJ and WILLIAMS left the premises.

[46] On November 20th, 2014, police executed a search warrant and documented the drugs and other related relevant material seized including:

• Cocaine packaging with residue was seized from the garbage;
• A large box of cutting agent in a Tupperware container;
• A bag of cutting agent;
• In the reception area, four boxes of sandwich bags were found on the seats in the northeast corner of reception;
• A 12-ton Powerfist press;
• In the desk in the front office, 30 grams of marijuana, sandwich bags and packaging for drugs were located;
• In the washroom, measuring cups, a spoon and a pot that appeared to have been used to make crack cocaine; and
• 65 grams of cocaine.

[47] On both occasions, November 13th and November 20th, the quantity of drugs and their high monetary value supports an inference that they were possessed for the purposes of trafficking.

[48] In addition, given the difference between the items observed on November 13th, 2014 and the items seized on November 20th, 2014, a number of different inferences are available. One may reasonably conclude that someone moved or trafficked in some of the material observed on November 13th, 2014. Alternatively, one could infer that the material seized on November 20th was not connected to the material observed on November 13th, 2014. Or alternatively, the items observed on November 13th were sold and what was seized on November 20th was entirely new product. Numerous other inferences are available since the samples obtained on November 13th have not been tested against the seized material on November 20th. Either way, movement of the drugs or production of more are available inferences.

Drugs Were Manufactured at DILLINGHAM

[49] There is an evidentiary foundation upon which a jury could reasonably draw an inference that drugs were being manufactured within DILLINGHAM.

[50] First of all, the large amount of drugs, indicative of possession for the purpose of trafficking, is capable of supporting an inference that the drugs were manufactured within the premises. In a similar vein, consider the fact that the drugs were stored within highly moveable and concealable gift bags suggestive that such storage was ancillary to trafficking without detection.

[51] Second of all, there were numerous items ancillary to the manufacture of crack cocaine including:

• Saran Wrap and duct tape packaging associated with rectangular kilogram brick of cocaine;
• Ziploc packaging used to facilitate trafficking of cocaine;
• Cutting agent;
• Dishes that appear to have been used to make crack cocaine;
• Hot plate; and,
• A press capable of being used to manufacture crack cocaine.

[52] A police drug expert explained how cocaine is mixed with cutting agent and cooked and pressed to increase volume and profit through the re-pressing procedure.

[53] The simple fact that crack cocaine was found at DILLINGHAM, with the ancillary items found within, combined with the expert opinion evidence could allow a jury to reasonably conclude that drugs were being manufactured at DILLINGHAM. The arguments presented by counsel to MAHARAJ and largely adopted by counsel to WILLIAMS are sensible arguments – they simply do not degrade the foundation for an inference being reasonably available.

[54] I heard submissions concerning possible innocent explanations for the various items found within DILLINGHAM. For example, counsel to MAHARAJ submitted that the plastic Ziploc bags found on November 20th could be innocently present within the premises. This submission, although correct, ignores the overall context. Yes, the plastic bags could be consistent with sandwich production rather than drug trafficking, but this was not a food service company nor was there evidence that the bags were being used for some task related to the auto service industry. In any event, I am not to weigh competing inferences in this proceeding.

[55] The defendants argue that there is no evidence that the press found in the garage was used to press cocaine. There is no apparent drug residue on the press and the presence of chipped paint does not mean that the item was used to press cocaine. A police witness (who I emphasize, was not qualified to give expert opinion evidence) opined that the press in the garage was used (i.e, factually used). I do not rely on that opinion. There is no direct evidence that the press located in the garage was in fact used to press cocaine. There is, however, direct evidence from a police expert witness that the press is capable of pressing cocaine and that in his experience, presses are often present and used in locations where drugs are being manufactured. Further, this witness was shown a photograph of seized drugs and testified that he perceived the cocaine to have been pressed. This witness also testified that various sizes of presses have been used in his experience, for example, table-top presses. I note as well that the 540 Application reveals that a press was found at the Harrison location associated to FAGAN.

[56] The submissions of counsel to MAHARAJ concerning the inferences with respect to the press are also intelligent and sensible submissions. Were I the trier of fact, I would consider those submissions carefully. But the submissions miss the mark in this particular proceeding. There is admissible evidence that a press that is capable of pressing cocaine was found within DILLINGHAM. The utility of this evidence is not whether the evidence shows that it was actually used or the speculative opinion that because it was chipped, it had been used. It does not matter that this press may be found at Canadian Tire. What does matter, what is probative to the limited purpose I must perform in this proceeding, and the limited inference urged upon me by the federal prosecutor, is the fact that the press could be used and the fact that the press was found in a location where other items ancillary to the manufacture of drugs were located. And the simple fact that manufactured drugs were located within the premises, wherever they might have been manufactured.

[57] The defendants argue that metal molds necessary for pressing cocaine are absent. Again, a police witness who was not qualified as an expert witness speculated that there was a lot of metal within DILLINGHAM and molds could have been present. I do not rely on this opinion. First of all, the police expert testified that having regard to the totality of the items ancillary to drug production seized at DILLINGHAM, the presence or absence of molds was not definitive. Second, the defendants were in and out of DILLINGHAM on many occasions and on some of those occasions, they possessed receptacles such as bags, boxes, or a knapsack. Third, based on the description of the molds provided by the expert, this is not a highly specialized instrument – basically, you need something rectangular to create rectangular pressed kilogram-sized objects. Fourth, the police expert, as I indicated, looked at a picture of seized cocaine during the preliminary inquiry and testified that it appeared to be in pressed form. Finally, given the size of the molds that I heard in evidence, they are movable objects.

[58] Once again, I emphasize, it is not my function in this proceeding to weigh the competing inferences argued by the defendants.

Was DILLINGHAM Merely a "Front"

[59] The federal prosecutor submits that the record establishes that DILLINGHAM was purely a front for drug trafficking. I would exercise some degree of caution with the absolute nature of this submission. There was evidence of auto parts, auto tools, and documents associated with the auto business within the premises. Further, on both November 13th and 20th, cars were within the garage. A review of the search warrant videos discloses the presence of tire balancing equipment and a multitude of tires and rims in the garage area. As pointed out by counsel to WILLIAMS, there is a hoist in the garage. Police surveillance on two occasions, I emphasize, according to my review of police notes on the 540 Application, record observations of work apparently being done within the premises.

[60] On the other hand, one might reasonably conclude that even if some work is being performed at DILLINGHAM, it did not appear to be a viable auto-related industry business because:

1. There is no evidence of who owns the premises;
2. There is no evidence of who leased the premises and to whom it was leased after it apparently closed on May 24th, 2014;
3. During a timeframe, November 3rd to November 20th, the police observed the premises at different times and there is no evidence of auto mechanic customers, no evidence of apparent customers dropping off their car for service, no evidence of deliveries to the premises from auto parts suppliers, and that sort of thing;
4. I do not have any evidence to show whether the auto shop related items are associated to WILLIAMS and MAHARAJ or someone else, for example, the previous proprietors. When I examine documents seized, other names are listed, I do not know who those persons are.

[61] There could be a multitude of reasons why DILLINGHAM was not a busy auto shop. Counsel to the defendants submitted I might find that it was a new business or draw an inference based on a connection between WILLIAMS, Supreme Auto, and his presence at DILLINGHAM. With respect, this is exactly the kind of speculation I must guard against because contrary to the submissions of counsel to WILLIAMS, for example, there is no actual evidence before the court that WILLIAMS is employed by Supreme Auto Group. There is no actual evidence before this court that WILLIAMS works in the auto industry. A vehicle he drove has a licence plate cover with that name and police surveillance reveals that he attended Supreme Auto Group on several occasions. My review of those occasions reveals it was usually for only a few hours, as documented in the 540 Application. I am satisfied that Mr. Williams is associated to Supreme Auto Group, but I do not have any evidence to find he was employed by that location. The second submission from counsel to WILLIAMS that perhaps DILLINGHAM was a new fledging business and the odd hours his client attended there might not be so unusual. This sort of argument is available for a jury, it does not assist me in my function at this proceeding.

Fagan, Williams, and Maharaj: Their Connection to DILLINGHAM

[62] A combination of circumstantial and direct evidence supports the reasonable inference that DILLINGHAM was a place where drugs were stored and a place where drugs were manufactured. The magnitude of the evidence linking FAGAN, WILLIAMS, and MAHARAJ to DILLINGHAM is relevant to the legal issue of possession.

[63] I have already set out the evidence with respect to FAGAN's attendance at DILLINGHAM where he was observed by the police earlier in this judgment. In addition to that evidence, the tracking warrant evidence (see tracking warrant summary) establishes his vehicle's attendance at DILLINGHAM on the following dates and times:

• November 4th, 2014: 7:38 p.m. to 10:30 p.m.
• November 5th, 2014: 2:01 p.m. to 4:58 p.m.
• November 6th, 2014: 5:49 p.m. to 8:34 p.m.
• November 8th, 2014: 00:16 p.m. to 01:52 p.m.
• November 17th, 2014: 12:26 p.m. to 1:05 p.m.; 1:11 p.m. to 2:46 p.m.; 9:07 p.m. to 11:21 p.m.
• November 18th, 2014: 8:55 p.m. to 11:27 p.m.

[64] MAHARAJ and WILLIAMS attended DILLINGHAM on a multitude of occasions. Consider the following evidence concerning DILLINGHAM:

• November 4th, 2014: WILLIAMS arrived at 6:34 p.m. and after making a number of trips elsewhere, finally left at 10:20 p.m. FAGAN arrived at 7:38 p.m. and left at 10:31 p.m. MAHARAJ arrived at 7:47 p.m. and left at 10:43 p.m. I should note that throughout the evidence, MAHARAJ's vehicle was observed on multiple occasions at DILLINGHAM. On some occasions, he was observed operating the vehicle, on other locations, he vehicle was observed and he was later associated to the vehicle, for example, when he left DILLINGHAM. The police never observed anyone else operating this vehicle, the vehicle registration was associated to him. It is reasonable to infer that he is associated to this vehicle and possession of this vehicle.

• November 5th, 2014: 11:53 a.m., WILLIAMS attends and interactions with an unknown person. FAGAN arrives at 1:59 and knocks on the rear door of DILLINGHAM and is granted entry by someone. At 4:59 p.m. WILLIAMS left the premises at DILLINGHAM, locking the door with a key.

• November 6th, 2014: WILLIAMS attends after 5:00 p.m. At 5:27 p.m., WILLIAMS drove away from the premises and returned at 5:34 p.m. FAGAN arrived at the rear of DILLINGHAM at 5:53 after having sold cocaine to the undercover officer at 5:09 p.m. At 7:45, MAHARAJ's vehicle attends and he enters the unit. At 8:33 p.m., FAGAN's vehicle left the area from which it had been parked at the rear of the building.

• November 12th, 2014: At 3:00 p.m. until 5:26 p.m., the police observed MAHARAJ's car outside. MAHARAJ left at 9:15 p.m.

• November 13th, 2014: At 8:54 p.m., MAHARAJ entered DILLINGHAM using a key. He attended his vehicle on numerous occasions to bring things into the unit. He left at 8:58 and then returned at 9:04 p.m. and re-entered the unit. After midnight, 12:05 a.m., some other individuals attended DILLINGHAM. At 1:28 a.m., MAHARAJ left returning to his residence and at 1:40 a.m., WILLIAMS left returning to his residence. Two hours later, the police entered DILLINGHAM under the authority of a general warrant and observed the documented drugs and paraphernalia associated with trafficking, outlined generally in paragraph 54 of the 540 Application.

• November 18th, 2014: At 5:20 p.m., WILLIAMS attended DILLINGHAM and left at 6:02 p.m. At 9:10 p.m., FAGAN's vehicle and the MAHARAJ vehicle were located in front of DILLINGHAM.

Conclusion – Inferences Concerning DILLINGHAM

[65] In summary, the evidentiary record supports the following inferences or conclusions for the purposes of this proceeding:

1. Large amounts of drugs were stored at DILLINGHAM for the purpose of trafficking;
2. Drugs were manufactured at DILLINGHAM;
3. DILLINGHAM did not appear to be a viable auto-related industry business;
4. FAGAN, WILLIAMS, and MAHARAJ had a significant connection to each other. See the surveillance evidence, the observations of the police officers and see, for example, the phone contact analysis filed in the 540 Application;
5. FAGAN, WILLIAMS, and MAHARAJ had a significant connection to DILLINGHAM.

[66] The final issue to determine is whether this significant body of circumstantial and direct evidence supports the requisite inferences necessary to commit the defendants for trial for possession for the purpose of trafficking.

Possession for the Purpose of Trafficking at DILLINGHAM

[67] The expert opinion evidence in support of possession for the purpose of trafficking was not challenged by MAHARAJ nor WILLIAMS at this proceeding. The evidence observed at DILLINGHAM on November 13th, 2014 and the evidence seized on November 20th, 2014 supports a conclusion that the person or persons who possessed the drug-related items at DILLINGHAM did so for the purposes of trafficking.

[68] In cogent and concise submissions, counsel to MAHARAJ outlined the defence position. Having acknowledged that there was some sort of drug operation at DILLINGHAM, counsel cautioned the court that mere presence is not enough to ground the constituent elements of possession. Counsel asserted that there was no evidence or evidence in support of a reasonable inference that MAHARAJ had knowledge or control over the narcotics. The narcotics were not in plain view. It was submitted that it would be speculative to suggest that MAHARAJ knew what was going on inside DILLINGHAM. It was submitted that it is possible that any nefarious activity could be going on behind his back. Counsel also pointed to the fact that there is no evidence that MAHARAJ interacted with FAGAN and WILLIAMS outside of DILLINGHAM. MAHARAJ arrives and leaves alone. He is not observed engaging in hand-to-hand transactions. He is not implicated in firearms trafficking. He has no debt lists. No drug-related paraphernalia or drugs was found on his person, his vehicle, or his home.

[69] The crux of their argument primarily rests upon the admitted fact that the drugs within DILLINGHAM were not in plain view to anyone within the premises. The defendants argue that there is no evidence in support of the requisite knowledge relevant to possession. The defendants challenge the reasonableness of, and implicitly the foundation for, the inference that MAHARAJ and WILLIAMS possessed the drugs and related items in DILLINGHAM. They argue that if the court properly weighs the circumstantial evidence, the inference submitted by the federal prosecution is simply not there.

[70] The argument provided by counsel to MAHARAJ was logical, analytical, and persuasive. But for the purpose of this particular proceeding, the able presentation of these arguments does not detract from my conclusion that a jury could, not would, find that MAHARAJ and WILLIAMS possessed the drugs in DILLINGHAM on November 13th and November 20th. There are a number of reasons for this conclusion:

i. The defendants' connection to DILLINGHAM generally and particularly on November 13th, 2014 and November 20th, 2014;

ii. MAHARAJ's physical presence when the search warrant was executed;

iii. There is an available inference that DILLINGHAM was a place where drugs are being stored;

iv. There is an available inference that DILLINGHAM was a place where drugs were manufactured;

v. The question of ownership of DILLINGHAM;

vi. The layout of DILLINGHAM; and

vii. The possession of keys and the issue of control.

[71] The first four reasons have been explained during this judgment. It is very significant that the defendants were inside DILLINGHAM within two hours of the general warrant and again a day prior to the execution of the search warrant.

[72] I will move on to examine what the last three issues add to the issue of possession that I have not already addressed.

Ownership of DILLINGHAM

[73] I have already set out the rationale for the conclusion that DILLINGHAM was a place where drugs were stored and manufactured. The criminal purpose for which DILLINGHAM was possessed is relevant to the issue of who owned DILLINGHAM and the issue of possession of the drugs and ancillary items.

[74] Commercial real estate is typically owned by someone or some entity. In this case, the prosecutor submits that there is no evidence of who owned DILLINGHAM during the relevant timeframe. The police do not know.

[75] The 540 Application reveals that the police checked and their investigation reveals that a business had been operated out of DILLINGHAM named Vosier Autosport. Indeed, counsel posed questions to certain witnesses about that particular business. Police checks revealed that that business was sold to unknown persons and closed down as of May 24th, 2014. This hearsay evidence is contained within the Section 540 application. There was no real cross-examination addressing this conclusion. I am prepared to accept, for the purposes of this proceeding, that the product of the police investigation into this issue is that there was no apparent owner at the time the defendants were connected to DILLINGHAM.

[76] Both WILLIAMS and MAHARAJ possessed keys to DILLINGHAM. A jury would be entitled to ask on the record placed before me why do the defendants have keys to a commercial premises that does not appear to be legally possessed by them and why is the true ownership of the premises so obscure that the police cannot determine ownership?

The Layout of DILLINGHAM

[77] The physical layout of DILLINGHAM is relevant to the issue of possession.

[78] Having viewed the video capture of the premises, it is safe to conclude that the premises are not extremely large. While I do not have evidence of the precise size or measurements of the premises or a map of the layout, I am able to get a good idea from reviewing the video several times. The layout of the first floor and second floor does not admit of a large amount of space.

[79] Further, DILLINGHAM was only minimally divided into the first and second floor. Contrast this to, for example, a multi-unit office with separate offices or cubicles, a residential home or an apartment building or condo for example.

Value of Drugs

[80] The high value of the drugs within DILLINGHAM provides a foundation to impute knowledge to MAHARAJ, WILLIAMS and perhaps even FAGAN. Respectfully, I do not accept the submission from counsel to MAHARAJ that I should view the principles outlined in R. v. McIntosh, [2003] O.J. No. 1267 (ONSC), as restricted to cases involving vehicles. It would be open to a jury to infer knowledge of the drugs in DILLINGHAM on the part of both WILLIAMS and MAHARAJ, given the value of the drugs in question: R. v. Blond, [1971] B.C.J. No. 656 (BCCA); R. v. Fredericks, [1999] OJ No 5549 (ONCA), at paragraphs 3-4; R. v. Bryan, 2013 ONCA 97, at paragraph 11; R. v. Amare, 2014 ONSC 4119.

Keys and Control

[81] Both WILLIAMS and MAHARAJ had personal possession of a key to the DILLINGHAM premises notwithstanding there was no apparent current owner or lessor of the property. They exercised control over the premises and permitted entry to FAGAN and to other unknown persons who attended. They were present just before the execution of the general warrant and the search warrant. There is no evidence of any other persons having control over these premises. As set out in this judgment, their access to the premises, their ability to control access to the premises, the number of times they attended the property, and the duration of time they spent within the premises provides a solid evidentiary foundation to support an inference of knowledge. Further, there is nothing in the evidence to suggest that the contraband found within DILLINGHAM should be attributed to one defendant to the exclusion of the other defendant, R. v. Sethi, 2014 ONCA 701.

[82] Both defendants attended the premises of DILLINGHAM on multiple occasions. There were distinct times when both defendants were within the premises, both with and without FAGAN. A review of the evidence surrounding FAGAN's attendance does reasonable support the conclusion that he attended and entered at the pleasure of MAHARAJ, WILLIAMS, or both because he was never observed entering alone, he was never observed entering with a key, and he was observed knocking and being granted entry. Other unknown persons also attended at times and were granted entry when either MAHARAJ or WILLIAMS were within the premises - or both.

[83] Personal possession of a key to DILLINGHAM is but one piece of the circumstantial evidence foundational to inferring that they possessed the drugs within. As counsel to MAHARAJ cautioned, it is simply one piece of evidence. Counsel filed a number of cases where possession of a key was not determinative of possession issues. As properly conceded by counsel, each case is unique and distinguishable based on certain facts.

[84] The other cases relied upon by counsel to MAHARAJ do not dissuade me from my findings. Consider the following observations:

• R. v. Archer, [2015] O.J. No. 4750 (ONCJ): In Archer, the preliminary inquiry justice resisted an inference in support of constructive possession of cocaine because there was no evidence linking the defendant to the target address, save and except his presence at the time a search warrant was executed.

• R. v. Bui, [2014] O.J. No. 4003 (ONCA): In Bui, the defendant was arrested as he arrived at a residence where the police were executing a search warrant. The learned trial judge erred in the analysis of reasonable doubt, requiring that conclusions about Bui's guilt had to arise from proven facts rather than the totality of the evidence. Further, the evidence gave rise to an inference that there were multiple parties within the residence. As such, a conviction for possession of a firearm hidden in a bed was unreasonable.

[85] The cases of Archer and Bui are unlike our case where there is a significant evidentiary record derived from both direct evidence, for example, surveillance, and circumstantial evidence showing a multitude of attendances by WILLIAMS and MAHARAJ and at times FAGAN at DILLINGHAM.

• R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 (Ont. C.A.): is really a case about the sanctity of the preliminary inquiry justice's reasonable inferences drawn from the evidence. The preliminary inquiry justice in that case found that the evidence did not support constructive possession of a firearm in a closet. The defendant was in the bedroom where the firearm was located at 5 a.m. as was his driver's licence. The Ontario Court of Appeal ruled that deference to the conclusions reached by the preliminary inquiry justice was in order and they specifically pointed out that this was because no jurisdictional error was made out.

• R. v. Do, [2003] O.J. No. 1720 (Ont. C.A.): In Do, the co-appellant, Mr. Vo, did not match the description of the suspect selling heroin, he was not a regular occupant of the subject premises even though he had a key, there were no documents connecting him to that subject premises, and there was independent evidence that other persons inhabited the subject premises. There was also the issue of unreasonable verdict in that case as the jury acquitted him of trafficking but convicted him of possession for the purpose of trafficking.

[86] In Do and cases like R. v. Grey, (1996), 47 C.R. (4th) (Ont. C.A.), a person tied to the target residence with no other evidence linking them to the residence, in circumstances where there was a positive record of other persons occupying the residence are entitled to the reasonable doubt at trial. The difference here is that WILLIAMS and MAHARAJ are substantially linked to a commercial business premises that has no apparent owner. There are other unknown persons who attend the premises but seemingly, only WILLIAMS and MAHARAJ regulate access to the premises. They both have keys. This is a substantially different case.

[87] Finally, just reviewing the cases that were filed, a number of cases were provided in support of the argument that the Rule in Hodge's case applies at the preliminary inquiry. This argument was not advanced during oral arguments and submissions in this case by either defendant. In any event, I would not have accepted this argument substantially for the reasons outlined in R. v. Hong, 2015 O.J. No. 6376 (ONSC), a case Mr. Strathman is well familiar with.

[88] Counsel to MAHARAJ is right – simple possession of a key is not determinative on the issue of possession. The cases he provided on point illustrate situations where possession of a key was not determinative on the issue of possession. It is simply one factor. But when I consider, as I am obligated to, all of the evidence in this proceeding, and I consider, as I am obligated to, the context including their possession of keys in this particular case, this is one of those cases where possession of a key is highly probative of the issue of possession.

[89] There are no other known persons with keys. There is no evidence of some other individual or group of individuals have this level of control over DILLINGHAM.

[90] Unlike some of the residential cases, this proposition rests on the unique nature of the DILLINGHAM premises and it is sufficient to fix the defendants with the requisite knowledge relevant to possession considered in many leading cases, including R. v. Pham, 77 O.R. (3d) 401, at paragraph 15; R. v. Bertucci, 165 O.A.C. 7; R. v. Chambers, [1985] O.J. No. 143; R. v. Katwaru, [2001] O.J. No. 209; R. v. Escoffery, 28 O.R. (3d) 417.

[91] When counsel to MAHARAJ submits that MAHARAJ might not know about the drugs concealed within DILLINGHAM because he is there for purposes related to the automobile business or there is no evidence he had the run of the premises, or might have simply remained in one location, for example, the waiting area. When counsel to WILLIAMS submits that perhaps DILLINGHAM was a newly created business or I should conclude or infer that WILLIAMS is in the auto business, it is important that I instruct myself that I am not the trier of fact, I am not addressing the criminal burden of proof beyond a reasonable doubt. It is not my function to scrutinize competing inferences. It is not my function to weigh the circumstantial evidence except as contemplated by the Supreme Court of Canada in R. v. Acuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

[92] These submissions exemplify some degree of speculation without the evidentiary record to support the inferential gap. For example, there is no evidence explaining MAHARAJ's purpose in attending DILLINGHAM or evidence supporting an inference that he remained in the waiting area of the business, for example. With respect to WILLIAMS, the 540 Application documents a few attendances at Supreme Auto Group where WILLIAMS remained for a couple of hours at most, this does not support a reasonable inference that he was employed there. While I must emphasize that the submissions provided by both counsel are intelligent and helpful, they simply do not assist me in this particular proceeding. This is precisely the sort of speculative reasoning without foundation Mr. Justice Ducharme cautioned against in R. v. Munoz. Counsel should not view my assessment of these arguments as anything other than my effort to restrict my analysis to the Shephard test.

[93] With respect to the submission that neither defendant could have knowledge of the drugs within DILLINGHAM because they were not in plain view, these arguments are for the jury. Once again, I am not determining whether the defendants are guilty to the criminal standard of proof. That is not the focus of this proceeding. If I gave effect to these submissions, I would be drifting towards weighing the issue of knowledge. (See: R. v. Gianchinin-Belen, [2006] O.J. No. 1592 (Ont. C.A.)). Alternatively, I would be weighing competing inferences which would also be an error. I must analyse the evidence on the issue of possession to determine if the inference urged upon me by the federal prosecutor is available.

Possession

[94] Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, incorporates the definition of possession found in Section 4(3) of the Criminal Code of Canada.

[95] Section 4(3) of the Criminal Code defines three types of possession including personal possession, constructive possession and joint possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paragraph 15.

[96] The prosecution must prove both knowledge and control as essential elements of both personal and constructive possession: Morelli, at para. 15.

[97] I have determined that the evidentiary record including the circumstantial evidence is sufficient to fix WILLIAMS and MAHARAJ with the requisite knowledge necessary to find them in possession of the drugs and ancillary items within DILLINGHAM.

[98] Possession, and in turn possession for the purpose of trafficking, rests on a circumstantial inference in this case. As such, I must weigh the evidence in a limited manner to see if the inference of possession urged upon me by the federal prosecutor is reasonably available on the evidence: Acuri, para 23. I must examine all of the evidence to determine the reasonableness of the inferences available and conclude whether a jury could, not would, find guilt: Acuri, paras 29-30.

[99] The federal prosecutor submits that on this record, a jury could infer that both defendants possessed drugs for the purpose of trafficking on November 13th and November 20th. On the record at this preliminary inquiry, there are multiple routes to the liability of WILLIAMS and MAHARAJ, for example, as parties, joint principles. And depending on how the jury viewed the involvement of FAGAN, a jury could find that all three embarked upon a joint criminal enterprise or common unlawful purpose to possess drugs at DILLINGHAM for the purpose of trafficking.

[100] As I have taken great pains to point out, my role as a preliminary inquiry justice is circumscribed: (See Section 548(1) of the Criminal Code of Canada; Acuri, para 21.)

[101] I am to take the prosecution's case at its highest. I am to draw inferences favourable to the prosecution, if they are available, on the evidentiary foundation and refrain from preferring competing inferences: R. v. Sazant, 2004 SCC 77 at para. 25; R. v. Wilson, 2016 ONCA 235, at para 23; R. v. Kamermans, 2016 ONSC 117, at paras 14-16.

[102] I am to weigh circumstantial evidence in a limited manner to determine whether it is reasonably capable of supporting the inference urged upon me by the federal prosecutor – if the evidence was believed, could be reasonably support guilt: Acuri, para 23. It is not my function to draw inferences, assess credibility, or factor in the inherent reliability of the evidence during this exercise: Acuri, paras 23, 30.

[103] As summarized by the Ontario Court of Appeal in R. v. Wilson, at paragraph 24:

"[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. To weigh competing inferences is to usurp the function of the trier of fact."

[104] In the result, Mr. WILLIAMS and Mr. MAHARAJ are committed to trial on possession for the purpose of trafficking.

Williams – Possession of Ammunition

[105] There is a solid evidentiary record supporting a finding that WILLIAMS was connected to the Markham residence, particularly the receipts concerning possession of the premises and the surveillance evidence. I have watched the SOCO videos, two of them, and observed the interior of this small apartment.

[106] What the evidentiary record does not make clear is the connection between WILLIAMS and the ammunition in the kitchen for several reasons:

i. While the Markham location had a high volume of persons attending for short meets and the police observed activity consistent with hand-to-hand drug transactions, no drugs were seized, for example, marijuana;

ii. The marijuana related material in the residence and the odour has not been circumstantially tied to WILLIAMS;

iii. I do not know who Merle WILLIAMS is and I do not know the number or identity of all persons residing at the Markham residence;

iv. There is no forensic evidence linking the orange can in the kitchen or any of the items contained within to WILLIAMS;

v. There is no evidence that WILLIAMS was assisting FAGAN in his trafficking of firearms to the undercover officer.

[107] I find that it would be, on this record, an impermissible speculation for me to link possession of bullets found within a container in the kitchen to WILLIAMS and as such, I am not satisfied that a jury could reasonably draw that inference on the record placed before this court.

[108] As such, I am obligated to discharge him on that count.

Released: April 18, 2016

M.S. Felix, J.