Court Information
Information No.: 2111-998-S13-0348
Date: August 2, 2017
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
-and-
Hassan Hassan
Judicial Officer and Counsel
Before: Justice L.P. Thibideau
Heard on: May 25, 26 & 29, 2017
Reasons for Judgment released: August 2, 2017
Counsel:
- V. Essert – Counsel for the Federal Crown
- A. Dresser – Counsel for Hassan Hassan
Judgment
THIBIDEAU, J.:
Charges and Procedural History
[1] Mr. Hassan Hassan was charged that on the 24th of January 2013 he possessed cocaine for the purposes of trafficking, contrary to section 5(3)(a) of the Controlled Drugs and Substances Act, and possession of a prohibited weapon, contrary to section 91(3) of the Criminal Code, namely, brass knuckles.
[2] During the course of the trial the Crown asked for and was granted a dismissal of the weapons charge based on the trial evidence as it unfolded.
[3] The controlled drugs charge relates to a warrant seizure of a quantity of cocaine originally said to be 156.5 grams from apartment nine, 139 Westchester Crescent, St. Catharines, Ontario.
[4] A Garofoli application and Charter application have been dealt with in separate proceedings before trial.
[5] The evidence at trial focused on a police investigation for a short time in June of 2012 and a much more active period of investigation and surveillance from mid-January 2013 to the 24th of January 2013.
[6] There are admissions. Date of offence, jurisdiction, and identification of the person arrested as Hassan Hassan are admitted. A quantity of drugs sufficient for a trafficking inference is also admitted.
[7] A number of police witnesses gave evidence regarding the surveillance of persons of interest and their vehicles from the 16th of January 2013 to the 24th of January 2013, the day of the execution of a warrant for apartment nine, 139 Westchester, and the arrest of Mr. Hassan in the apartment. This evidence is in support of the Crown theory that Mr. Hassan and three others were engaged in a crack cocaine drug selling operation from rented motor vehicles in the Niagara Peninsula.
The Crown Theory
[8] The Crown argues that Hassan Hassan possessed crack cocaine for trafficking purposes and that is proven by a number of factual circumstances where the amount seized is sufficient for an inference of drugs for trafficking. Historically Mr. Hassan is tied to residency at 43 Buss Street, Thorold Ontario, where immediately after his departure from that residence, at the end of 2012, drug paraphernalia was left in place where known members of the drug culture had been present from time to time.
[9] During the course of the January 2013 surveillance he was identified as a driver of one of the motor vehicles of interest, on one occasion, in circumstances resembling a drug trip to customers in the opinion of an observing police officer.
[10] Mr. Hassan was the lessee of apartment nine, and was found in his room in the apartment at time of warrant execution.
[11] In his room was found a panther scale, suitable for weighing out drugs for sale.
[12] The Crown argues he must have been aware that in the common kitchen area, in plain view, were drugs and drug paraphernalia suitable for a crack cocaine selling operation. The digital scale in the kitchen contained drug residue. All of this with no effort to disguise or conceal. His connection to the apartment as tenant and occupant, coupled with the inescapable conclusion he had knowledge of the cocaine operation on the premises, with his involvement in dealing cocaine to customers, makes out the guilty act of possession and knowledge of use intended in an operation in which he was an integral part.
[13] The drugs were constructively possessed by him as proven by collateral circumstance and the drugs actually found in his apartment, where he was present at the time of arrest.
The Defence Theory
[14] The several days of police surveillance with Mr. Hassan as an identified driver of a vehicle of interest, only once, proves nothing. No stop was made. No drugs were found. The identifying officer, D.C. Jeramie Sills is not an expert and is not an independent witness so that any opinion he has is of no evidentiary value. The lone identification itself is at issue. D.C. Sills' evidence is also suspect because it lacks reliability based on discrepancies in his evidence and notetaking.
[15] The bedroom of Mr. Hassan contained no drugs and no paraphernalia related to drug sales. The exception, scales found, could well be for personal use as per police evidence. The drugs and paraphernalia in the kitchen were not in plain view, particularly with respect to the location of the bedroom of Mr. Hassan in relation to the kitchen, and the sightlines involved.
[16] The drugs were found in the kitchen. They were partially boxed and the box lid could have been closed if and when viewed by Mr. Hassan. Others could have been the possessors of the drugs found based on the available evidence. Djamal Mahmoud was found in his vehicle of interest, with cocaine in his boxers when arrested at the time of warrant execution. This cocaine was wrapped in a manner similar to the cocaine found in the kitchen. He had keys to the building. Drugs and drug paraphernalia were found in the bedroom of Djamal Mahmoud or Ali Mahmoud. There were brass knuckles and a cutting agent found in the room, with identity papers of Djamal Mahmoud. The indicators of possession and control relate to Djamal Mahmoud, perhaps Ali Mahmoud, but not Mr. Hassan, lacking the requisite knowledge and control of the drugs.
Evidence with Respect to Surveillance
[17] D.C. Jeramie Sills at the time in January of 2013, a 14-year police veteran and an experienced drug enforcement officer, was a team member involved in the investigation. His first involvement was on the 16th of January 2013 when he was told by his brother, fellow officer Ian Sills, of a group of black or Somali-looking males selling crack cocaine from 139 Westchester. The information that those persons were in a crack cocaine selling operation came from confidential informants.
[18] On the 16th of January 2013 he personally observed a Honda motor vehicle, B-P-B-W-2-7-5 with driver known to him from previous contact, as Ali Mahmoud. The vehicle was plated to Rapid Rentals on Hartzell Road, St. Catharines, as were some other vehicles also involved in the investigation. This observation was consistent with information received that vehicles could be rented from this site, for cash, and that multiple rented vehicles were being used to avoid detection while selling drugs.
[19] D.C. Sills followed the vehicle driven by a black male, which could have been the same Ali Mahmoud, or not, to various short-stop locations, ending up at the residence of the mother of Ali Mahmoud, which the officer said confirmed the identity of the driver.
[20] During surveillance another vehicle of interest, B-P-B-W-1-7-5 was observed. Several days of surveillance by several officers focused on the black or Somali male driver of several similarly rented vehicles.
[21] On the 17th of January 2013, D.C. Dawson observed another motor vehicle, B-P-B-W-2-3-5 driven by Ali Mahmoud with a short trip and short stops.
[22] On the 21st of January 2013 D.C. Jeramie Sills' observations begin at 139 Westchester. He observed a rented Mazda on a similar multi-short-stop trip, to the Penn Centre parking lot, contact with a person; trip to Salvatore Street, a stop at a Carlton Street residence nearby; trip to Tim Horton's, a stop; trip to Knights Inn on Lundy's Lane with a stop; and a trip to the Boston Pizza parking lot with contact with another person; and finally a Spring Street stop, and a Temperance Avenue stop. During observations of the vehicle while parked on Salvatore Street for a visit, close by Carlton Street, this officer identified the driver as Mr. Hassan based on previous contact in unrelated investigations and arrests, and court attendances from January through to December of 2012. Later in the day he identified Mr. Hassan as the driver on the continued journey of that vehicle, particularly at the Knights Inn stop.
[23] On the 23rd of January 2013 Detective Constable Jeramie Sills observed another Rapid Rental vehicle, this time B-P-B-W-4-9-0 on a similar journey, standing at 139 Westchester while Khalil El Atabani entered the vehicle at that location.
[24] Detective Constable Paul Jackson, a surveillance team member, observed vehicle movement from January 21st to 24th of January 2013 inclusive. He observed vehicle of interest B-P-B-W-1-7-2 and vehicle B-P-B-W-2-3-5 at the building parking lot, with people coming and going. But the only person of interest identified regarding the vehicle activity was on January 24th, 2013 when he traffic stopped vehicle B-P-B-W-2-3-5 with Djamal Mahmoud driving. Search incident to arrest revealed two cell phones, four Percocet pills and a small white bag taken from the boxer shorts of Mr. Mahmoud, with contents consistent with crack cocaine based on experience. Other officers involved with similar vehicle and person surveillance from time to time did not identify any other persons. For example there was D.C. McCombre (ph) and D.C. Rawson.
Evidence with Respect to Warrant Search
[25] There is the connection of Mr. Hassan to apartment nine, 139 Westchester in St. Catharines. D.C. Sills was the contact person for information regarding the apartment building at 139 Westchester through a 17th of January 2013 telephone call with the property manager. He learned that Mr. Hassan had rented apartment nine with James Harris on or about the 30th of December 2012, for occupancy as of the 1st of January 2013. On the 23rd of January 2013 he had personal contact with the building manager to obtain keys for the building and the apartment for a warrant entry the next day. The warrant search the next day resulted in a copy of the Hassan-Harris apartment nine rental agreement dated 30 December 2012 being found in the closet in the bedroom occupied by Mr. Hassan.
[26] On the 24th of January 2013 the warrant search was executed on apartment nine by a number of police personnel. At the time of entry three persons were found in apartment nine; Ali Mahmoud was found on the couch in the main living area of the apartment; Mr. Hassan was found asleep in his bedroom with the door closed; and a female occupant, Olivia Smith, was taken by police from the apartment's main living area.
[27] The main items found in the search were the following. First, in the main kitchen area: one Blackberry box with four bags of cocaine, with two analyzed and in evidence at 53 grams. Separate stand-alone multiple empty bags suitable for cocaine sales; miscellaneous stripped or cut plastic suitable for wrapping crack cocaine for sale; two scales; scissors with the empty or cut bags; cell phone box with an apparent debt list and accounting.
[28] In the common or living room area: on the person of Mr. Ali Mahmoud a Blackberry; on the living room table a silver H-U-A-W-U-I cell phone.
[29] In the northwest bedroom designated as the Mahmoud bedroom: on the closet shelf crack cocaine in three bags, 29 grams, 29 grams and 14 grams respectively; under the mattress a powder substance analyzed as Phenacetin, a cutting agent for cocaine; under the bed a pair of brass knuckles; on the floor a Samsung phone.
[30] In the southwest bedroom designated as the Hassan Hassan bedroom: a broken HTC cell phone; a Samsung phone; a Blackberry phone; copy of a tenancy agreement for Mr. Hassan at 43 Buss Street, Thorold Ontario; copy of tenancy agreement for Hassan Hassan and James Harris as lessees of apartment nine; driver's license, as it turned out for Mulhadine Hassan; driver's license application and passport for Mr. Hassan; and a panther scale in a baggie on the floor; $50 cash. All of these Hassan Hassan bedroom items were in plain view or easily located, except for the Blackberry located behind the mattress of the bed.
Evidence Evaluation
[31] The evidence regarding Hassan Hassan living at 43 Buss Street, in Thorold where drug paraphernalia was found, immediately after he stopped residing there, is of no evidentiary value in relation to drug trafficking. The actual evidence of D.C. Jeramie Sills that Hassan Hassan resided there with unnamed others in the drug culture before moving to 139 Westchester, was non-specific as to evidence for drug culture conclusions, reached by the officer. It also is evidence of propensity, which is not permitted. There is no evidence that any perceived drug-related crimes in Thorold related to the St. Catharines investigation in a real or direct way.
[32] The surveillance evidence over the days preceding the warrant entry and arrests has limited evidentiary value. Despite numerous surveillances over several days, on several motor vehicles and drivers, there was only one identification of Mr. Hassan as an operator, or passenger, in the suspect vehicles. The defence argues that one identification is poor evidence based on physical circumstances of the identity events and the unreliability of the evidence of D.C. Jeramie Sills.
[33] On the whole these arguments fail. D.C. Sills had ample opportunity at close quarters on two occasions during the 21st January 2013 trip surveillance to identify Mr. Hassan. His prior knowledge of him in the previous year involved meaningful contact, both in the field and in a courtroom setting. His attention was also drawn to Mr. Hassan by reason of his identification on the 17th of January 2013, when he was made aware that Mr. Hassan occupied apartment nine at 139 Westchester as a tenant.
[34] Nonetheless, the defence argument related to the significance of the one driving of a vehicle identification being very limited, is accepted. No actual drug deal was observed. No arrest of a drug recipient took place. D.C. Jeramie Sills was not a qualified expert to give opinion as to the significance of what he saw. It is problematic to associate non-proven drugs in a non-proven drug deal on the road with found drugs in the apartment. In addition, other persons detained at time of warrant arrest were also identified as drivers of suspect vehicles in suspicious circumstances in the days leading up to arrest, including Ali Mahmoud, the brother of Djamal Mahmoud.
[35] The shortcomings in the investigation conducted by D.C. Jeramie Sills do not cause the conclusion to be made that the investigation was fatally deficient. The most glaring error was the assumption made by the officer that the first discussion with the building manager about suspect occupants of the building resulted in the officer erroneously believing that apartment six in the building was occupied by Khalil El Atabani, which in fact it was not. The error was caught out and police conduct was altered accordingly. The warrant for that apartment was not executed. The mistake found out before execution. This fact takes away from the bad faith argument for the defence. It demonstrates that police investigations are not perfect, but perfection is not required.
[36] The defence relied on discrepancies in evidence on other evidentiary items at trial to demonstrate that D.C. Jeramie Sills was not a reliable witness. Nine separate issues in all. However, in context, these issues do not demonstrate evidence of unreliability regarding the identity of Mr. Hassan as a vehicle driver on the 21st of January 2013. These items run the spectrum from small points like whether a goatee can also be described as facial hair, to more serious; for example, his recollection drugs were on the table in the living room at time of warrant execution when in fact they were not; misidentifying the name Hassan Hassan on the driver's license found in the bedroom. Other observations had little significance, for example, whether a passport was in a bag with scales or not.
[37] On a separate evidentiary note, items were found in the Hassan bedroom in close proximity to each other. Absent evidence to the contrary it is a reasonable inference that items found in the Hassan bedroom belonged to him, were under his control. That said, the defence is correct that what was found in the Hassan bedroom does not in itself support any inference that the occupant of the room had some involvement in drug trafficking. The items found show a close and ongoing connection between the room and Mr. Hassan, but there were no drugs, no drug packaging, no debt list, for instance. No significant amount of money to suggest proceeds of crime. There was a scale, but no residue, and that was consistent with trafficking or personal use.
[38] The best Crown evidence is the items seized from the kitchen area. Succinctly the aggregate of items found clearly demonstrate a substantial quantity of drugs with paraphernalia for trafficking.
[39] With respect to Mr. Hassan there are three realistic possibilities that can be confirmed or discounted by the evidence:
- He had drugs for trafficking;
- He did not have drugs for trafficking but had knowledge and control;
- He did not have drugs for trafficking and did not have knowledge or control at all.
The Law
[40] It is agreed that the facts of this case require the Crown to prove beyond reasonable doubt possession of cocaine for the purposes of trafficking by way of circumstantial evidence. Constructive possession is proved by facts demonstrating that Mr. Hassan had the requisite knowledge of the nature and quantity of the substance and the requisite control over it in the apartment. The actual nature and quantity of the substance as cocaine, is conceded.
[41] Section 2 of the Controlled Drugs and Substances Act and section 4(3)(a), (i) and (ii) of the Criminal Code define constructive possession for our purposes. A person has anything in possession when he or she has it in his or her personal possession, or, has it in the actual possession or custody of another person, or, has it in any place, whether or not that place belongs to or is occupied by him or her, for the use or benefit of himself or herself, or of any other person.
[42] On the facts of this case the Crown asserts that Mr. Hassan, while not having the cocaine in his personal possession, did have it in a place belonging to him and/or occupied by him, for the use or benefit of himself or another person.
[43] To prove this assertion of constructive possession the Crown must demonstrate knowledge, which is more than mere quiescent knowledge and some measure of control over the possessed item. This knowledge required may be established by direct evidence, or, as in our case, by circumstantial evidence. To do this the Crown must demonstrate there is evidence which results in an inference of guilt to the exclusion of any exculpatory inference.
Regina v. Pham, 77 O.R. (3d) 401 O.C.A. paras 15, 17, 18
Regina v. Griffin, 2009 SCC 28
[44] The court must, in coming to a result, consider the whole of the evidence to determine whether the Crown has established a level of knowledge, intention to possess, and control of drugs to support the charges.
Regina v. Tremblay, 2013 ABQB 190 para 25
[45] The requisite knowledge can be described in other terms as well. Knowledge will often depend on the visibility of the object and the accused's connection with the location. Occupancy however does not automatically imply knowledge of the items within the dwelling.
Regina v. Wu, 2014 ONSC 4418 para 6
Regina v. Grey, 28 O.R. (3d) 417 (Ont. C.A.)
[46] A presumption of possession of the contents of an apartment does not arise by virtue of a tenancy or an occupancy.
Regina v. McConnell, [2016] O.J. No. 5575 para 72
Regina v. Watson, 2011 ONCA 437 para 13
[47] However direct evidence of an accused's knowledge of the presence of narcotics in a residence is not required. This may be established by circumstantial evidence that meets the required standard.
[48] Knowledge is one element. Separate and distinct is some measure of control. This too is fact driven. It has been described as the accused's ability to grant or withhold consent to the storage of the item in a particular location.
[49] Yet mere passive acquiescence cannot amount to control. Some active steps such as encouraging, helping, or directing, are necessary to either establish the power and authority as a principle offender, or establish aiding or abetting by a party. Mere indifference or passive acquiescence does not satisfy the element of control.
Regina v. Thompson, [2010] O.J. No. 2266 para 33
[50] Whether or not the requisite elements of knowledge and control are present and proved beyond reasonable doubt is fact driven.
[51] In Regina v. Pham, supra, a case similar to ours, a dwelling in a shared apartment was, a dweller in a shared apartment was charged with possession of cocaine for trafficking. She was not present at time of arrest or entry. There was a finding of guilt in large part because of observed multiple drug deals at the apartment before warrant entry. The other occupant was excluded as the person bringing the drugs to the apartment, leaving the accused as the sole drug possessor.
[52] In Regina v. Tremblay, supra, a possession for purposes case, involved a case of musical chairs with respect to hotel rooms. The oral exculpatory evidence of the accused was rejected. The drugs were found in a room recently vacated by the accused for another room. And then upon arrest in that other room, occupied by the accused, drug paraphernalia and a gun were located. Other person or persons had stayed or visited. The connections of the accused to the two rooms resulted in a finding of his exclusive control of them, resulting in conviction.
[53] In Regina v. Wu, supra, the issue was possession and manufacturing of MDMA, methamphetamine and ketamine, in a residential dwelling. Mr. Wu and at least one other was observed present before warrant entry, but only Mr. Wu was present at entry. The telling evidence leading to conviction was the following: drugs were in plain view in multiple rooms; there was presence of drug paraphernalia in plain view; there was a strong odour associated with a drug operation permeating the whole house, demonstrating knowledge; control was established by other evidence, particularly the pre-arrest purchase of a large sum of money compatible with funding the drug operation; sole occupancy for a short time demonstrating that Mr. Wu was trusted in the drug operation and deemed not to be a risk to the operation; and finally documents related to him were found in the home.
[54] In Regina v. April, 2017 SKPC 402, another case similar to ours, there was search warrant entry, as a result of which were found a number of persons and two plastic bags of methamphetamine hidden in a bedroom baseboard in sufficient quantity for trafficking. The sole issue was accused's possession as demonstrated by the requisite knowledge and control. The fortified nature of the house, the presence of the accused with plain view indicia of trafficking were evidence of knowledge or willful blindness as to knowledge of drug trafficking. Specific knowledge as to type of drug and location of drug was not a requisite element of knowledge on the facts. With respect to control the evidentiary elements were these: a barricaded house and a hidden stash, leading to a conclusion that someone was a designated guardian of the drugs in that location, the guardian had specific knowledge of the hidden location of the drugs, someone in the house tried to destroy a cell phone, and the evidence contained on it, as the police were entering. One or more persons who were guarding the stash had control. However the identity of the knowledgeable in-control-guardian reduced down to two people, the accused and/or one other. The result was at least one inference was exculpatory, namely that the other person was in control, and as a result there was a not guilty finding.
[55] The defence also offers Regina v. McConnell, supra, for consideration. It sets out the law of possession with requisite elements of knowledge and control. The finding of not guilty was the result of lack of control by reason of the fact that there was insufficient evidence to show the accused was a resident or otherwise long-term connected to the residence, despite being present and fleeing entry. However this is not our factual situation.
[56] Regina v. Arruda, [2004] O.J. No. 5523, involves some of the elements of our case. There was a pre-arrest surveillance connecting the accused to the house of interest. However, in Arruda the pre-arrest surveillance evidence was seriously compromised by patent inaccuracies on a crucial point. There was however a street arrest of the accused for trafficking as a result of a transaction actually observed by police. The house had multiple occupants with access to the basement where drugs were found, in a lunchbox, in a refrigerator, along with some paraphernalia. Two family members, one of them the accused, occupied the basement, not together but at separate times. In addition, other invited guests used the area overnight from time to time. It was described by one family member as a, "common bedroom". The contents of the refrigerator were not exclusively owned by the accused. On the basis of the referenced case law regarding the issue of non-exclusive possession of a premises, or an object, and the facts of this case, reasonable doubt as to the accused's connection to the drugs led to a not guilty finding where "plain view" was not an issue.
[57] In Regina v. Higgins, [2011] O.J. No. 5296, a case where knowledge and exclusive control was made out for one person charged, Mr. Higgins, but not his girlfriend, based on the degree of control of the premises exercised by Higgins and his connection to the bedroom-storeroom of firearms, found along with drugs and drug paraphernalia. Mr. Higgins was the sole payor of rent, always in cash. There was another occupant of the apartment with another bedroom. There was marijuana in the living room in plain view, seen by all three occupants. Despite the lack of exclusive access to the bedroom-storeroom, a finding of fact that the accused had requisite knowledge and control was made based on the observable indicia of control of the room by the accused and the presence of the drug paraphernalia in the room.
[58] The Regina v. Thompson, supra, case focuses on the control aspect of possession in a search warrant entry situation. An extensive review of case law with respect to knowledge and control resulted in a not guilty finding based upon the following. There was no dominant controlling occupant; all four persons had equal rights to the premises. All were regular occupants; none were transient or occasional visitors. Occasional or past use of the room by the accused could not lead to a guilty knowledge of well-hidden cocaine in a camera case. But marijuana seeds were in plain view and therefore guilty knowledge of them was made out for all. Drugs in a cookie jar were not in plain view but in a common area. People had ongoing use of the dining room area as a bedroom as well as a common area. Knowledge was imputed to three as a result. One occupant was excluded as a bedridden person. From time to time others had access to the premises including party-goers, but stored drugs of value placed by a mere visitor amounted to merely speculation and not probative fact. No evidence as to ownership of the camera case or the cookie jar was in evidence. No evidence of actual drug trafficking. No direct evidence such as fingerprints or DNA. As a result of this set of circumstances the logical inferences include the third tenant as an owner and possessor without knowledge of the accused persons, or with knowledge, characterized by mere indifference or passive acquiescence, where the other possible possessor was the third occupant of the premises.
[59] In Regina v. Provost, 2011 ONCA 437, [2011] O.J. No. 2562 (Ont. C.A.), there was a sleeping accused when police entered. Found along with the sleeping accused at time of entry was a handgun and cocaine in trafficking quantity, in plain sight. The accused testified he was a drug user not a dealer, that the co-accused and another person were present the night before. One of them must have been the possessor of the gun and the drugs found. The Court of Appeal characterized the case as a circumstantial one with issues of possession related to proof of knowledge and control, specifically there was no direct credible evidence that the accused knew of the presence of the co-accused in the apartment, or knew about the drugs or the gun. Thus the Crown's case was truly circumstantial. The Court of Appeal also found there were several errors by the trial judge in arriving at a guilty finding. For our purposes relevant to the facts of our case the Court of Appeal ordered a new trial, partly to determine whether or not the accused's occupancy of the apartment in the circumstances could result in a possession of items at issue inference. It was not a foregone conclusion.
[60] In Regina v. Nyuon, 2014 ABCA 130, there is a case involving joint possession not constructive possession, but it is instructive. The police targeted Sudanese males for drug trafficking and surveilled accordingly. An undercover buy was set up with one of two males, exclusively, in a room at a Ramada Inn in Medicine Hat Alberta. The only appellant involvement with the officer was names, introductions. There was crack cocaine in plain view in the room. A transaction took place, and later, other likely transactions were observed, with people coming and going.
[61] At trial for trafficking cocaine, both were convicted. The trial judge found both to be in possession of cocaine because the appellant was present to provide protection for the other, who actively sold, and both were in the room while sales took place, and neither one of them had more control than the other.
[62] The appellant appeal on several grounds included the ground that the trial judge erred in finding the appellant was in possession of the cocaine in plain view. The Alberta Court of Appeal had several issues with the trial judge's reasoning. First, the finding of fact that the appellant was there for protection arose from circumstantial evidence alone; chiefly that he was simply present. There was no evidence of hovering or intimidation at all, merely presence. The inference that he was there for protection and not any other legitimate purpose, was speculation on these facts. Other non-culpatory inferences were possible.
[63] With respect to joint possession, the passive nature of the involvement of the appellant, one of two persons who apparently had control of the motel room, indicates knowledge but not control. The trial judge failed to address control by way of assessing whether the appellant had the required power to grant or withhold consent. The appellant's connection to the room as a payor for the room, or as an occupant with belongings and personal documents in the room, was not made out factually.
[64] The result was that one reasonable inference to be drawn from the facts was that the appellant was consorting with someone who possessed the drugs. And this is not enough for the required knowledge and consent for joint possession. The Court of Appeal were of the view there was insufficient evidence beyond reasonable doubt that the appellant exercised the necessary control over the drugs to find him in joint possession.
[65] Finally there is Regina v. Villaroman, [2016] 1 SCR 1000, 2016 SCC 33, where the Supreme Court of Canada reviewed and reiterated the standard of proof in a possession of computer with child pornography where the case is entirely circumstantial. The final word from the Supreme Court is this:
Once circumstantial evidence is in play the trier of fact must be aware of the nature of the circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt;
The trier of fact must always be aware of the difference between direct and circumstantial evidence;
Reasonable doubt relates to or describes a state of mind; the degree of persuasion that entitles and requires the trier of fact to find the accused guilty;
A proper instruction about circumstantial evidence alerts the trier of fact to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. The dangers can be avoided by reference to certain approaches;
The trier of fact can be aware that an inference of guilt from circumstantial evidence should be the only reasonable inference that such evidence permits in order to find guilt;
The trier of fact must be careful not to fill in the blanks in evidence by too quickly overlooking reasonable alternative inferences;
Words like "reasonable inference" and "rational inference" to describe the potential inferences are permissible, with the word "reasonable inference" preferred;
It is error to conclude inferences of innocence must be based on proven facts;
The issue with respect to circumstantial evidence is the range of reasonable inferences that may be drawn from the evidence. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the proof required beyond reasonable doubt.
One or more gaps in the evidence may result in inferences other than guilt, but those inferences must be reasonable given the evidence and the absence of evidence, assessed logically and in the light of human experience and common sense.
Other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence by the trier of fact or the absence of evidence, not on speculation. There is a requirement that the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt.
On the other hand the Crown may need to negative these reasonable possibilities but the Crown is not required to disprove of every possible conjecture which might be consistent with innocence.
[66] It is noteworthy the Supreme Court of Canada places the issue of standard for reasonable inference proof somewhere above conjecture and below probability, such as in reasonable and probable grounds, with words like reasonable possibility and plausible theories when defining the reasonable inference required. To meet the standard the evidence must be sufficient so that a reasonable person informed of the facts or lack of them, using logic, common sense, and experience, would conclude that the inference is reasonably possible but not merely based on speculation or conjecture.
Resolution
[67] Applying these principles to the facts of our case results in the following. The Buss Street evidence purporting to tend to show a connection to the drug culture and involvement with drug paraphernalia is not probative at all for the reasons that have been mentioned. The evidence itself is extremely weak. The evidence of drug user or trafficking in a residence no longer occupied by Mr. Hassan, in the context of the rest of the evidence, has little relationship to him other than his bare occupancy of the residence for a time.
[68] The evidence, such as it is, is sufficient for an ITO background purposes but otherwise is merely evidence of propensity, which is forbidden.
[69] The surveillance evidence does identify a possible, perhaps probable drug selling operation from rented vehicles. Mr. Hassan is identified as a driver of one vehicle on one day as observed. There were many occasions for surveillance by officers, over days, to identify him and others as common drivers of the vehicles in problematic circumstances, which was not done. No drug transaction was observed, nor were they proven as a result of a stop charge during surveillance.
[70] The exception of course is the stop and arrest on the warrant execution day when Djamal Mahmoud was arrested in a rental vehicle in which there were found two cell phones, Percocet, and hidden in trousers a bag of likely crack cocaine. This focuses the issue on him and not Mr. Hassan.
[71] This surveillance evidence has two evidentiary aspects. With respect to Mr. Mahmoud, the evidence, along with the warrant entry to apartment nine evidence, provides facts from which a strong inference can be made that he had stashed cocaine for trafficking in the apartment. With respect to Mr. Hassan in the context of all the evidence, the surveillance evidence of one observed trip with him as a driver with two passengers, then two more passengers, results in the finding that he may have been driving around, effectively providing a taxi service, without involvement in selling drugs, a reasonable if not likely possibility. He may have been a driver for other persons dealing drugs, for instance, two black males picked up at Knights Inn on Lundy's Lane, passing off drugs to a van occupant at the Boston Pizza parking lot. If so, it is unlikely the drugs originated in a stash at 139 Westchester.
[72] In summary, whatever the involvement, there is a very slender thread of connection between observed conduct and the stash at 139 Westchester, and little thread of connection to his possession of the stash, constructive or otherwise. We are therefore left with the warrant entry to apartment nine, 139 Westchester evidence.
[73] Mr. Hassan was a legal co-tenant of the apartment with one other on the written lease, which began in the same month as the arrest. He was present in the apartment when warrant entry was made, asleep alone in his bedroom in the two-bedroom apartment. The other co-tenant was not present.
[74] Relevant items found in his bedroom were two usable cell phones, one of them under the mattress, the co-tenancy agreement, identifying documents, a panther scale, $50 cash. There were no drugs of any kind. The accepted undisputed Crown evidence is that the scales could be indicative of drug use or drug sales. The cash was insufficient in quantity to be probative.
[75] In the common kitchen area was found a Blackberry box with four bags of cocaine sufficient to satisfy a trafficking inference. There was paraphernalia including two scales, plastic bags, whole or strip-cut for cocaine wrapping, scissors and an apparent debt list. The only reasonable inference is that, this collection of items was ample for an inference that they relate to trafficking in drugs.
[76] There was a significant amount of questioning of Crown witnesses regarding the exact location of the items in the kitchen, whether they were in plain view, and what the sightlines were from the Hassan bedroom to the kitchen area. It is clear the paraphernalia, like scissors, uncut or cut bags, were in plain view on the kitchen counter.
[77] It is unclear from the evidence whether or not the packaged drugs were hidden in the Blackberry box, or not. In the photographic exhibits the bags of drugs appear both in the lid-open box and displayed on the counter, separate from the box. The first photograph of the area from the kitchen door area shows the drugs in the box with the lid open. There is no direct evidence that conclusively determines the box lid was closed, or open, when warrant entry was affected.
[78] The defence argues correctly that what occurred with six officers present between entry at 11:53 a.m. and the arrival of the SOCO team about one half hour later is not known. One or more could have opened the box and left it so. The first kitchen photographs were not taken until 2:42 p.m. The part of the counter where the drugs were located is partially visible from the living room and not at all visible from the Hassan bedroom.
[79] There are indicators that the actual physical possession of the drugs involved one or both of the Mahmoud brothers. Djamal Mahmoud entered the building at 11:16 a.m. and left a few minutes later, arrested outside the building, in his vehicle. At arrest the arresting officer intercepted a drug call on a cell phone and found on his person a small bag of cocaine as indicated, with packaging very similar to the packaged cocaine in the kitchen.
[80] Two persons were present in the living room area at time of warrant entry. Except for the fact of their presence in the apartment with the stashed drugs in the kitchen, and one bedroom, their presence does not move the matter forward.
[81] In the Mahmoud bedroom was found the wallet and identifying papers of Djamal Mahmoud along with Phenacetine under the mattress and brass knuckles, a bag of cocaine in the closet, hidden or not. There is a strong inference that Djamal Mahmoud with the physical possessor of the bedroom and the kitchen cocaine as a result of these facts.
[82] The timing of the placement of the kitchen cocaine in the kitchen is relevant. It could have been there for a considerable period of time. It could have been brought in by Djamal Mahmoud when he entered the apartment a few moments earlier, prior to warrant entry, in order to place his stash to avoid having a quantity of drugs on him when he went out to do an apparent drug deal, having on his person only what he needed in order to do that deal.
[83] If the latter, the sleeping Mr. Hassan would have no knowledge, no direct control. Absent a standing invitation to use the apartment for drug storage and sale, for which there is no direct evidence at all, there could be no constructive possession.
[84] If the former, we are left with the competing inferences drawn by the Crown and defence.
[85] Mr. Hassan was connected to the apartment by tenancy agreement and by habitual occupancy. These facts provide opportunity to have knowledge and exercise control, but these facts are not dispositive. Occupancy does not automatically imply knowledge of the items within the dwelling. Mr. Hassan was asleep in his drug-free room when arrested. The kitchen drugs found were in the kitchen for an unknown period of time, ranging from a few minutes, the arrival of Djamal Mahmoud shortly before arrest scenario, to days. The occupancy of the bedroom in the apartment by Mr. Mahmoud also indicates that that means it could have gone back as far as January 1st. There is nothing in the evidence which excludes a short drug-presence time in favour of a longer drug-presence time for the kitchen drugs.
[86] The Mahmoud bedroom drugs were at least partially hidden, perhaps wholly hidden from any view from outside the room. Knowledge of these drugs on the closet shelf cannot be attributed to Mr. Hassan on any basis other than a low probability one with respect to the evidence at hand. Imputed knowledge on our facts is limited by low or nil degree of visibility of the closet cocaine, and the time factor with respect to the kitchen cocaine.
[87] In assessing the issue the most favorable reasonable fact-based scenario for the defence determines the issue. It need not be the most likely scenario, only a reasonable one, and fact based.
[88] I am not satisfied beyond reasonable doubt that Mr. Hassan had the requisite knowledge for constructive possession because the circumstantial evidence in this case permits an exculpatory inference. Likewise, the requisite control element is lacking. Mere presence, even with drugs known to be in the apartment, is not sufficient. There must be some permission or facilitation re drug presence and trafficking. As in Regina v. Thompson, supra, with somewhat similar facts, control is not made out.
[89] As a legal tenant Mr. Hassan, with or without the co-tenant, could give permission for Mr. Mahmoud to occupy the premises. This does not mean automatically permission to store and sell drugs was in fact given. On our facts indifference or passive acquiescence is a reasonable inference to be made. As in Thompson, supra, the facts permit a logical non-inculpatory inference. The other person occupier, without knowledge of Mr. Hassan, or the recently deposited drug scenario, or other person occupier scenario, with knowledge of the drugs characterized by mere indifference or passive acquiescence may be reasonable inference scenarios to be available in the circumstances.
[90] Even where drugs are openly present, that fact alone does not lead to an inescapable inculpatory inference regarding joint possession or constructive possession. Some kind of control or facilitation must accompany the knowledge.
[91] The short drug time in the apartment scenario puts us in the Regina v. Provost, supra, territory. The knowledge of drugs, if it existed here, but without any real degree of control over the drugs or drug activity, puts us in the Regina v. Villaroman, supra, territory, with our facts, far less problematic for the defence than in that case. In our case there are gaps in the circumstantial evidence which cannot be filled by assumption or conjecture. To do so would have the result of overlooking reasonable exculpatory inferences based on facts which raise a reasonable doubt, assessed logically and in the light of human experience and common sense. As a result there will be a finding of not guilty.
Dated at St. Catharines, Ontario
This 2nd day of August 2017
The Honourable Justice L.P. Thibideau