Ontario Court of Justice

Date: 2017-11-10

Court File No.: Brampton 15-14228(01)

Between:

HER MAJESTY THE QUEEN

— AND —

KENTON LANGHORNE

Before: Justice D.F. McLeod

Reasons for Judgment released on: November 10, 2017

Counsel:

• S. Thompson, I. Jaffe — counsel for the Crown
• J. Struthers — counsel for the defendant K. Langhorne

D.F. McLeod J.:

[1] Introduction

Mr. Langhorne has been charged with a series of drug and driving related offences stemming from his interaction with his then co-accused Dwidth Ferguson. The central issues with respect to this matter are knowledge and credibility.

Summary of Facts

[2] September 19, 2015 — 3:00 PM

On September 19, 2015 at 3:00pm, Kenton Langhorne and an unknown male were heard via an intercepted phone call. The unknown male told Mr. Langhorne that "the man called and he is in tonight". Mr. Langhorne explained that he hadn't heard from "you", referring to the unknown caller. The male told Langhorne he will call him back in fifteen minutes and ended by saying "they good".

[3] September 19, 2015 — 3:44 PM

At 3:44pm, Mr. Langhorne and the unknown male spoke again. Mr. Langhorne told the male that he was just following up to see what was happening. The male assured Mr. Langhorne that everything was alright and that Mr. Langhorne would be contacted as soon as "he" arrives.

[4] September 19, 2015 — 6:48 PM

Contact between Mr. Langhorne and an unknown male was again intercepted at 6:48pm. Mr. Langhorne was advised – "I want you to link up a ball with a SIM….a phone". Mr. Langhorne replied that it may be a little late today but he will get one for him tomorrow.

[5] September 19, 2015 — 7:29 PM

Mr. Dwidth Ferguson arrived at Toronto International Airport onboard flight BW600 from Guyana at 7:29pm, and cleared customs. Mr. Ferguson was carrying a knapsack on his back and was wheeling a carry-on suitcase.

[6] September 19, 2015 — 7:41 PM

At 7:41pm on the same day Mr. Ferguson entered a dark four-door sedan.

[7] Vehicle Contents

He placed his suitcase in the trunk and put his knapsack in the rear passenger seat.

[8] September 19, 2015 — 8:46 PM

Using the same telephone numbers, Kenton Langhorne and the unknown male spoke again. The male asked Mr. Langhorne how far away he was from Mississauga, and Mr. Langhorne replied "20 minutes half an hour". The male instructed Mr. Langhorne to head straight there and "he'll" be waiting for him.

[9] September 19, 2015 — 8:55 PM

Kenton Langhorne and Dwidth Ferguson spoke via phone. Mr. Ferguson advised Mr. Langhorne that he was at 901 Dixon Road Mississauga and was attempting to stay there.

[10] Surveillance at Marriott Hotel

At some point surveillance was established at the Marriott Hotel located at 901 Dixon Road, in Mississauga. DC DelleMonache attended the location and observed a four-door Volkswagen located under a canopy.

[11] Vehicle Movement and Hotel Entry

The subject vehicle eventually drove into the lower parking level out of the officer's line of sight. A few minutes after the vehicle had entered the lower parking level, the two individuals who were observed in the vehicle walked up from the lower level. One individual was the driver and the second male was identified as Dwidth Ferguson. Both men walked towards the canopy of the hotel and entered the facility, neither male was carrying luggage.

[12] September 19, 2015 — 9:23 PM

DC Brockley observed the two men from the vehicle enter the lobby of the hotel. The officer conducting the surveillance did hear the male with Mr. Ferguson ask him if he had texted the address to him, Mr. Ferguson replied "I did".

Kenton Langhorne Picks up Dwidth Ferguson

[13] September 19, 2015 — 9:28 PM

Kenton Langhorne arrived at the Courtyard Marriott at which point Mr. Ferguson exited the hotel and entered Mr. Langhorne's vehicle. A short time later Mr. Ferguson met with another black male who was wearing a red shirt. Mr. Ferguson and that male made their way to the underground parking garage. Mr. Langhorne followed in his vehicle.

[14] Exit from Parking Area

Moments later Mr. Langhorne was observed exiting the parking area and making his way onto Dixon road.

[15] September 19, 2015 — 9:44 PM

Mr. Langhorne and Mr. Ferguson entered another Courtyard Marriot located in Vaughan. Both men used the Novotel computer for approximately 13 minutes and then left in Mr. Langhorne's vehicle.

The Chase

[16] September 19, 2015 — 10:19 PM

At approximately 10:19pm, DC Mavrou received information over the air that DC Butler was following Mr. Langhorne's vehicle northbound on Weston Road. DC Mavrou caught up to Mr. Langhorne as he was travelling westbound on Stanton Road. DC Mavrou was travelling behind DC Butler's car.

[17] Box Formation Stop

Mr. Langhorne proceeded north on Silver Sterling Court which is one street east of Mr. Langhorne's residence at 344 Stanton Avenue. DC Mavrou was advised that Mr. Langhorne should be stopped and arrested prior to him arriving at his house. The officers attempted to do a "box formation stop". DC Butler stopped at the Porsche's front bumper and DC Mavrou pulled up as close as he could to the rear bumper. The Porsche came to a complete stop without making contact with either police vehicle.

[18] Police Identification

The evidence of DC Mavrou was that once he believed the box formation was successful, he exited his vehicle and yelled "police". DC Mavrou indicated that he was wearing his police vest which had the word "police" on the front flap. The writing that appears on the vest is reflective. The officer indicated that the area of the stop was well lit with street lighting. DC Butler, who was also dressed in police regalia exited his vehicle and was positioned to the right of Mr. Langhorne's front bumper.

[19] Visibility Issues and Weapons

DC Mavrou also testified that the word police although reflective is only on the right side of the breast pocket and Mr. Langhorne in light of his position within the vehicle would also not be in a position to see the word "police" which was on the rear of the vest. It was also brought out in cross-examination that DC Mavrou had his gun un-holstered and drawn when he was approaching Mr. Langhorne's vehicle. The officer also believed that DC Butler had his gun drawn at the time of the attempted take down.

[20] Escape from Box Formation

Mr. Langhorne within a few seconds of the officers yelling police was able to free himself from the boxed formation. DC Mavrou testified Mr. Langhorne in an attempt to get away narrowly missed DC Butler. Mavrou also testified that at points during the chase Mr. Langhorne was travelling at a high rate of speed, as well as not attempting to stop when approaching stop signs.

[21] Car Probe Recording

Mr. Langhorne's vehicle, at the time was retrofitted with a car probe which was operational and able to pick up sounds in and around his vehicle. DC Mavrou stated that he was yelling "police" during the box formation and attempted take down. In cross examination the car probe was played, however the recording did not capture DC Mavrou issue the command police, even though his evidence was that he stated those words in a "louder voice".

[22] Police Pursuit

During the pursuit DC Mavrou noticed several police vehicles following in pursuit of Mr. Langhorne including a fully marked York Regional Police SUV with its lights activated. These vehicles, including the fully marked SUV, attempted to cut off Mr. Langhorne, however he was able to manoeuvre around the vehicles.

[23] High-Speed Driving

On several occasions during the chase Mr. Langhorne was travelling at speeds in excess of 140 km/h, in a residential area. At times the car probe was able to capture the tires of Mr. Langhorne's vehicle, squealing as he sped around corners.

[24] September 19, 2015 — 10:18 PM — Discarding Packages

At 10:18pm, Mr. Langhorne stopped his vehicle on Harley Drive, and yelled "open the trunk, open the trunk" at which point he exited his car. The passenger in the car "Dwidth Ferguson" exited at the same point and fled the scene on foot. Mr. Langhorne quickly accessed the back hatch and discarded a white plastic bag. He then re-entered his car and sped off. As Mr. Langhorne sped off further items fell from the back of the hatch. This was not only readily seen by DC DellaMonache who was behind Mr. Langhorne's vehicle but was also captured on CCTV.

[25] Arrest

Eventually Mr. Langhorne was unable to manoeuvre through two parked cars at which point his vehicle was approached at gun point by officer DC DelleMonache. He was then detained and a large quantity of drugs was found. Mr. Langhorne was then arrested and charged accordingly.

[26] Arrest Details

At the time of his arrest by DC DellaMonache, according to his testimony, DC DellaMonache was driving an unmarked vehicle, was not in uniform, alone, and indicated that he was unarmed at the time of arrest. DC DellaMonache also testified that he did not believe he had identified himself as a police officer.

Evidence of Mr. Langhorne

[27] Knowledge of Drugs

Mr. Langhorne took the stand and gave evidence in his own defence. Mr. Langhorne testified that he was not aware of any drugs being brought into the country and had no knowledge of Mr. Ferguson's intentions when he landed in this country.

[28] Background and Relationship

Mr. Langhorne is a 43 year old married man who came to Canada from his native Guyana in 1997. He and the brother of Mr. Ferguson (Raul Ferguson) have been friends since Mr. Langhorne lived in Guyana and they have remained in contact with each other over the years.

[29] Business Interests

Mr. Langhorne is self-employed with ownership in a trucking company in the United States, a mining company in Guyana and a hair salon in Toronto, Canada.

[30] Concert Promotion Partnership

Mr. Langhorne was familiar with Raul Ferguson's (Dwidth Ferguson's brother) business of promoting concerts. Mr. Langhorne has partnered with Raul in the past and was helping to find talent for a show to take place in Toronto at some point in the future.

[31] Change in Plans

Arrangements were made between Mr. Langhorne and Raul Ferguson. Mr. Langhorne was to line up a few artists and DJ's locally. These meetings were eventually organized in anticipation of an expected arrival from Dwidth. The plans quickly changed when Mr. Langhorne was made aware that Dwidth was no longer coming at the originally scheduled time.

[32] Personal Circumstances

Although the change in plans were accommodated it caused several cancellations for the talent. Although the plans were no longer concrete Mr. Langhorne advised all concerned, that the promoter would be in the GTA in short order. Mr. Langhorne also had another issue, which was that his wife had just given birth and he was expected to be present at home in order to help out around the house.

[33] Airport Pickup

Raul, eventually arrived at Pearson International Airport. Mr. Langhorne testified that he was never expected to pick up Raul or was he involved with anything customs related. Mr. Langhorne advised the Court that when Dwidth arrived he was to make contact him to let him know he arrived.

[34] Phone Request

Raul Ferguson asked Mr. Langhorne if he would be able to facilitate his brother getting a phone, while he was in town. Mr. Langhorne indicated that he was willing to help however he would not be able to do anything until the next day due to the lateness of the request.

[35] Hotel Assistance

Mr. Langhorne was contacted by Dwidth Ferguson to advise him that he was unable to find accommodations and required some help. Mr. Langhorne, then made his way to the Marriott where Dwidth was waiting for him.

[36] Transfer of Belongings

Upon his arrival at the Marriott, Dwidth with the unknown male and Mr. Langhorne made their way to Dwidth's friend's vehicle at which point he and his friend took his belongings from the one car and placed them in the rear of Mr. Langhorne's vehicle.

[37] Hotel Search

Eventually both Mr. Langhorne and Dwidth made their way to another hotel, in an attempt to secure lodging. However that hotel was also filled. They were directed to a computer within the hotel in order to see if any other rooms in the GTA were available. This process took some 20 minutes, however there was still no availability.

[38] Toronto Film Festival

Many of the hotels were filled to capacity due to the Toronto Film Festival. The pair were advised that there would be rooms available however they would be between Oshawa and Kitchener.

[39] Plan to Stop at Home

Mr. Langhorne suggested that they stop at his home which would give him an opportunity to let his wife know what there next steps are. He felt this was important due to the fact that it was now 10:15pm.

[40] Suspicion of Being Followed

The pair then left the hotel and were on their way to Mr. Langhorne's home located in Vaughan when he noticed that his car was being followed. In order to confirm his suspicion he turned into a cul-de-sac a small distance from his home and noticed the vehicle behind him did the same maneuver.

[41] Dwidth's Panic

At the point of the turn into the cul-de-sac Mr. Langhorne said "I think I am being followed" when he uttered those words Dwidth began to panic and began looking around.

[42] Unknown Pursuers

Eventually, the vehicle pulled in front of Mr. Langhorne at which point someone exited the vehicle and was pointing an object towards Mr. Langhorne's car. Mr. Langhorne was panicked as he did not know who these people were or what they wanted with him.

[43] Chase Intensifies

As the chase intensifies Mr. Langhorne indicates that he now observes more cars joining in at high rates of speed. As the chase continues he states that Dwidth leaps over into the back seat and is trying to get into the trunk area. As this is happening Mr. Langhorne is still attempting to focus on the road.

[44] Unaware of Police

As the events are unfolding Mr. Langhorne maintains he is has no idea what is going on, or why it is going on. He hears no sirens, nor does he observe any lights. To this point he is unaware of why he is being followed and stated in examination in chief "like it wasn't nothing that anyone in the world would think its police".

[45] Vehicle Configuration

Dwidth while in the back seat was complaining that he was having a difficult time accessing his belongings in the trunk. Mr. Langhorne's vehicle has a mesh divider that separates the main cabin of the vehicle from the trunk.

[46] Dwidth Flees

Eventually Mr. Langhorne stops his vehicle to allow Dwidth to access his belongings. It's Mr. Langhorne's belief that the source of the events of the night have to do with Dwidth and as a result he would like him to leave the vehicle with his bags. As the vehicle came to a stop Dwidth fled the vehicle however he did not take his bags with him.

[47] Audio Evidence

During his testimony, Mr. Langhorne is able to decipher some of what is heard on the audio tape. Mr. Langhorne indicated that what could be heard was coming from inside the vehicle where he is yelling "open the trunk". Langhorne testified that he wanted him to open the trunk but rather than doing that he fled the vehicle and the scene.

[48] Discarding Belongings

In response to Dwidth fleeing the scene, Mr. Langhorne leaves the driver's seat, opens the trunk and attempts to discard all of the Dwidth's belongings. He does this because he believes that the genesis of all of the issues that have taken place to this point have to do with the bags that Dwidth travelled with.

[49] Interrupted Plan

The only thing that stopped Mr. Langhorne from executing his plan to its fullest extent was the fact that as he tried to dump Dwidth's belongings he could hear the roar of the other vehicles beginning to descend on him.

[50] End of Chase and Arrest

Eventually the chase comes to a halt. Mr. Langhorne stops in front of a home that is not his own and as the cars converge on his location he is being asked to follow the commands that are being directed at him. Mr. Langhorne is being compliant, but he asks "who are you?" To this point Mr. Langhorne has not been told who these people are nor has he heard anyone use the word "police". Mr. Langhorne testified that he only believed them to be police officers once he saw the helicopter in the sky.

[51] Denials

Mr. Langhorne at every stage denies bringing drugs into the country, being aware that drugs were being brought into the country or being aware that he was transporting drugs in his vehicle. He also maintains that at no time was he aware that the vehicles that were following him were police cars or that any officers had approached his vehicle until he saw the helicopter whilst being arrested.

Credibility

[52] Central Issue

The ultimate question in this case is whether the Crown has proven its case beyond a reasonable doubt. In assessing this question, the key issue is one of credibility.

[53] Standard of Proof

As I consider counsel's submissions, I keep in mind that the test in a criminal trial is not which side I believe more, but whether the Crown has proven the offence beyond a reasonable doubt. All of the evidence must be considered in determining whether the Crown has met its burden.

[54] W.(D) Test

The Supreme Court requires that this standard be applied to the issue of credibility: R. v. W.(D), (1991), 63 C.C.C. (3d) 397 (S.C.C.). In W.(D)., Cory J. directed that the trial judge must acquit if the evidence of the accused is believed or if he is left in reasonable doubt by it even if he does not believe that evidence. The third element of W.(D) obliges the judge to ask herself even if he is not left in reasonable doubt by the evidence of the accused, whether he is convinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he does accept.

Analysis

[55] Credibility of Accused

The testimony of Mr. Langhorne was compelling and straight forward and was quite frankly, believable. The Crown's case standing alone would have been insurmountable had Mr. Langhorne not testified and provided context to the actions that were exhibited on the day in question.

[56] Evidentiary Gaps

The Court will point to three narratives (a non-exhaustive list) which, had Mr. Langhorne not testified, surely would have enured to his detriment and ultimate guilt.

The Hotel

[57] Inferential Gaps

Mr. Langhorne's testimony fills in inferential gaps left by the case presented by the Crown with respect to the goings on at the hotel.

[58] Unexpected Guest

Mr. Langhorne's viva voce testimony explained that he was not prepared to have Dwidth Ferguson as a guest at his home nor was he expected to pick up Dwidth at the airport.

[59] Crown's Inference

The Crown's evidence prior to the testimony of Mr. Langhorne would lend itself to the belief that this was a prior arranged meeting between the two in order to facilitate the transfer of the drugs (at least one inference that can be taken).

[60] Alternative Explanation

However, the testimony of Mr. Langhorne articulates the inability of Dwidth Ferguson to get a hotel due to the Toronto International Film Festival festivities. Mr. Langhorne is then asked by Dwidth's brother to help him find a room, hence the travel from one hotel to another in the hopes of finding a place for Dwidth to stay.

[61] Innocent Inference

When the full narrative is added to the actions of Mr. Langhorne, in terms of going to another hotel and the actions taken in that regard, a reasonable inference can then be drawn other than guilt.

The Chase

[62] Context of Events

Mr. Langhorne testified that he was alarmed at being followed and was panicked when his vehicle was approached by an unknown male. However what was taking place in the car provides context to what was not seen or testified to by the officers.

[63] Dwidth's Behavior

Mr. Langhorne provided the narrative of what was taking place in the cabin of the car. The actions of Dwidth Ferguson were described as him moving at a frantic pace, once he is told that they are being followed. His actions inside the vehicle and eventual bolting from the car, in light of Langhorne's testimony, now make sense, in that he (Dwidth Ferguson) is aware that what he is carrying is illegal but also confirms that his illegal activity could lend itself to being followed either by the police or a nefarious contingency both of whichever could pose danger.

[64] Belief of Danger

It is also clear that the manner in which Mr. Langhorne was driving appeared to establish that he refused to stop for the police. However in light of the evidence that I do believe, Mr. Langhorne was not aware that he was being followed by the police. But rather it was his belief that he was being chased by individuals who were dangerous and who were known to Dwidth Ferguson.

[65] Lack of Police Identification

Further, the pursuit was brief, it is unclear based on what could be heard on the car probe that the officers actually announced themselves as police officers. In fact it was the testimony of Mr. Langhorne that the officers never announced themselves and he was unaware of who they were until he saw the police helicopter. Also some of the officers who were party to the chase were following in unmarked vehicles.

[66] Explanation for Driving Behavior

Mr. Langhorne's testimony with respect to what was transpiring in his vehicle, as well as his belief that the persons chasing him were doing so for nefarious reasons, I believe caused him to drive in the manner he did.

Discarding the Packages

[67] Video Evidence

A video was placed in evidence at the trial proper which showed the flight of Dwidth Ferguson from the vehicle. The viewer can also see Mr. Langhorne exit the vehicle, make his way to the trunk and discard several items from the trunk of the vehicle.

[68] Plausible Explanation

When the testimony of Mr. Langhorne is further analyzed it is plausible that the fear that Mr. Langhorne exhibited had its rooting in the manner in which Dwidth Ferguson was acting as well as the alleged utterances he made.

[69] Protective Measures

The manner in which Dwidth Ferguson acted whilst in the vehicle would have precipitated Mr. Langhorne not going to his home as he testified but rather taking an alternate route, in order to ensure the safety of his family.

[70] Innocent Inference from Video

Further, when Dwidth abandoned the vehicle it would also make common sense that the reason for him being followed has to do not only with Dwidth Ferguson but also with the packages Dwidth was attempting to retrieve. The video shows Mr. Langhorne attempting to get rid of that which he believes "they" want. The video in isolation is damaging however when viewed through the lens of the narrative provided to the Court an innocent inference that can be drawn from a very circumstantial case.

Conclusion

[71] Lack of Knowledge

On my review of the evidence, the Crown was unable to prove that Mr. Langhorne had any knowledge of what was secreted in the packages brought into Canada by Mr. Dwidth Ferguson. Nor was the Crown able to establish that whilst Mr. Langhorne was seen in possession of the packages for a momentary period of time, did that constitute consent on his part.

[72] Lack of Involvement

Further it can and was argued that in light of the high worth of the drugs being brought into the country, it points to Mr. Langhorne's culpability. However, Mr. Langhorne did not attend at the airport to pick up the source bringing in the drugs nor was there any evidence that he was to ensure the drugs safe keeping.

[73] Actions Accord with Innocence

The actions of Mr. Langhorne provide this Court with an allowable inference that suggests innocence, in that these are also actions that accord with the Langhorne narrative that being to simply work with Dwidth Ferguson for the purposes of dealing with artists and DJ's therefore there is no urgency to connect with him until they are required.

[74] Driving Behavior Explained

It is this Court's belief that the manner in which Mr. Langhorne drove was done in that manner solely because of the circumstances that he believed he was facing during the chase. That being his need to evade the persons who are chasing him to potentially cause harm.

[75] Credibility Assessment

Upon my review of the evidence of Mr. Langhorne, it is this Court's belief that his evidence was given in a forthright and cogent manner. The evidence of Mr. Langhorne is not only capable of belief but his viva voce testimony was able to fill in several gaps left at the end of the Crown's case.

[76] Acquittal

Further, in cross-examination Mr. Langhorne's evidence although challenged, remained consistent and coherent. Mr. Langhorne presented as a hardworking man, with no criminal record or criminal antecedents. His evidence when married with the evidence that this Court does believe leaves me in a state of reasonable doubt and as such an acquittal will be entered on all counts.

Released: November 10, 2017

Signed: Justice D.F. McLeod