Court Information

Date: September 8, 2020

Ontario Court of Justice (Toronto Region)

R v Daniel Abreha

Reasons for Judgment on Reconsideration of Committal for Trial

Heard: August 27, 2020 Judgment: September 8, 2020

Counsel for the Accused: W. Glen Orr and Scott O'Neill

Counsel for the Crown: Ira Glasner

Judge: Libman J.

Judgment

[1] Following a preliminary inquiry heard over a number of days in April, May, June, August and September, 2019, I ordered Mr. Abreha to stand trial on 8 October 2019 in relation to a 17-count information consisting of four counts of possession of controlled substances for the purpose of trafficking, and 13 counts in relation to possession of a prohibited firearm. Mr. Abreha's trial is currently scheduled to begin in the Superior Court of Justice on 13 October 2020.

[2] However, Justice Molloy quashed the order of committal on 24 February 2020, and remitted the matter to me for reconsideration based on the reasons given. The reason for this is that I misapprehended a key item of evidence that linked the defendant to the firearm, namely, a baseball hat concealing the gun on a desk, which was in proximity, in turn, to the drugs hidden in a shoebox and Mr. Abreha, who was sitting nearby. I had erroneously considered that the baseball hat shielding the firearm in the room where Mr. Abreha was arrested could be found to be the same baseball hat that he was seen previously wearing. While the hats are similar in style, it is now clear that they are not the same, a point conceded by the Crown. The matter was thus brought back before me, scheduling being impacted by the COVID-19 pandemic. I heard further submissions on 27 August 2020, and reserved judgment until today, 8 September 2020.

[3] Having reviewed again the evidence that is now available to the trier of fact in what was already a "very close call" as I previously put it, or "a very weak Crown case" in the words of Justice Molloy, I have respectfully concluded that it is no longer open to the trier of fact to conclude that the evidence could support an inference of guilt under the test established by the Supreme Court of Canada in R v Arcuri, 2001 SCC 54. Accordingly, the accused must be discharged on all counts. Let me explain the reasons for arriving at this conclusion.

Connection to the Contraband

[4] Mr. Abreha's connection to the contraband is tenuous to begin with. He clearly comes within the description of an occupier in the apartment where the gun and drugs were found. While he was seen with keys to the unit and a fob permitting access to the building on a number of previous occasions, so too did a number of others likewise have access to the unit and building. Indeed, on the day in question, while he alone was in the unit at the time the police arrived, others attempted to gain entry while the police were searching it, including a woman whose fingerprints were found on items immediately in proximity to the drugs, in the very same shoebox.

[5] The firearm that was located under the baseball hat was on a desk near where the defendant was sitting. It was not in plain view. Indeed, the police officers who initially entered the room did not see it until they moved the hat. There is no evidence that the accused either saw the weapon from where he was located or would have had any clearer vantage of it prior to the hat being moved to reveal it.

[6] The only other objects in the room personal to Mr. Abreha, or anywhere else in the unit for that matter, were items of jewellery and a broken health card on the desk, along with keys that fit the door lock. However, numerous other items were located cluttered on that same desk that appear not to be related to the defendant. The drugs, in turn, were found in the bottom of a stack of shoeboxes near the desk; there was a weigh scale containing drug residue on top of the stack of boxes.

Evidence Pointing to Others

[7] In contrast to this, there is a formidable body of evidence pointing to others, not Mr. Abreha, who are, in fact, linked to the unit generally, and the contraband, at least the drugs, in particular.

[8] To begin, the accused is not listed either as a tenant or occupant on the apartment lease. Those persons, according to the lease, are Justice Marshall and Janelle Marshall. Moreover, the security footage from the building showed numerous instances where the unit was accessed by others, without the defendant being present.

[9] It appears that there were two fobs that permitted access to the building that were issued to the apartment in question. While Mr. Abreha was found to have one of them, the other was used even after the defendant's arrest. The evidence showed that this occurred 86 times over a three month period. Of course, access could also be gained by entering the building with others at the same time. It is also not known how many keys there were to the apartment.

[10] No forensic evidence links the defendant to the shoe box where the drugs were located or the gun. On the other hand, fingerprints belonging to Jamal Johnson were found on tissue paper in the shoebox with the drugs; documents in the name of Justice Marshall were found in the same room as the drugs and firearm.

[11] Ms. Duck, along with another male party, was attempting to enter the unit while the police were searching it. The fingerprints of Ms. Duck were on a small booklet inside the shoebox that contained the drugs. Indeed, had the police executed the search of the unit a short time later, following their arrival, there would have been multiple persons inside the unit, including one whose fingerprints were close to the drugs.

Legal Test and Analysis

[12] At a preliminary inquiry, the Crown's case is entitled to be taken at its highest. Where there are competing inferences available to the trier of fact, the justice must not usurp the role of the trier of fact and determine which of the competing inferences is to be drawn. The judge's weighing of the evidence is limited to assessing whether it is reasonably capable of supporting the inferences that the Crown seeks the trier of fact to draw: Arcuri, paras. 23 and 30.

[13] On the basis of the record before me, it would constitute speculation to find that the inferences sought to be drawn by the Crown in relation to the requisite elements of knowledge and control on the part of the accused are available. The case was presented on the basis that the gun and drugs are inextricably linked: valuable items such as the drugs would not be left without protective measures being put in place to safeguard them, as evidenced by the presence of the firearm.

Comparison to R v Allison

[14] The facts of this case resemble closely those of R v Allison, 2016 ONSC 3073. There the accused was found alone inside a small one bedroom apartment. He was not the leaseholder. There was no forensic evidence linking him to it. A loaded firearm and drugs were found in a bin beside a futon. Documents in the accused's name were found nearby. He was not seen entering the unit before that day. Justice Trotter, as he then was, upheld the preliminary inquiry judge's discharge order in these circumstances.

[15] In doing so, he rejected essentially the same argument that Mr. Glasner has so succinctly put before me. In that case, it was argued that it can be inferred that everything in proximate to the futon, including the contents of the bin, belonged to Mr. Allison. Most specifically, it could reasonably be inferred that he was aware and exercised control over the contraband in the bin: see Allison, para 19.

[16] Justice Trotter considered that this line of reasoning rested "on a string of inferential leaps" (para. 19). I am respectfully of the opinion that the same can be said here.

[17] The only salient difference between this case and Allison is that Mr. Abreha was seen on a number of previous instances gaining entry to the unit and the building. That said, so were a number of others. Including in the months following the accused's arrest. And unlike Allison, forensic evidence of persons other than the accused were found in immediate proximity to the drugs, which in turn was a short distance away from the firearm.

The Pivotal Baseball Hat

[18] Through this lens, the ball cap over the firearm was a pivotal and significant piece of evidence. In the words of Justice Molloy, it is an item of evidence "which could easily have changed the result." (para. 15). It is the one piece of evidence linking the defendant to the weapon, located a short distance away from the cache of drugs. In its absence, the foundation of the argument that Mr. Abreha can be inferred to have knowledge and control of the contraband is simply no longer available.

Crown's Arguments

[19] Mr. Glasner forcefully argues that the fact remains that clothing and personal items worn by the accused are found in the same room as the drugs and firearm. A person associated with the drugs would not want to risk such valuable items being unattended or left with anyone. Mr. Abreha is the only one in such proximity to the items at the time the police searched the unit. He was located there in the evening, at a time when the person residing in the unit would be expected to be there.

Defence Arguments

[20] Mr. Orr, while agreeing that the drugs and firearm are tied together, that is, the person associated with one must be taken to be linked with the other, argues that the Crown's case is significantly weakened by the hat no longer being associated with his client. It does not permit an inference of knowledge and control of the contraband by him. Most significantly, he argues, the baseball hat shielding the gun, is now a key piece of evidence for the defendant, not against him, as was previously the case when committal was ordered, given the acknowledgment that this hat is not Mr. Abreha's.

Conclusion

[21] The position of the defence, in my respectful opinion, is unassailable. There is simply no evidence available to the trier of fact that is reasonably capable of supporting the inferences that the Crown seeks to have drawn. The chain of reasoning Crown counsel seeks to have drawn is speculative at its highest. Reduced to its essentials it is this: the accused is the only person found in the unit when the gun and drugs were located, and they were all in the same room. It can therefore be inferred by the trier of fact that he can be taken to have exercised knowledge and control over such items. However, as I have noted, this is the very argument rejected by Justice Trotter in Allison as constituting impermissible speculation. It requires, with respect, "a string of inferential leaps".

[22] On the basis of the record before, and in light of the matter being remitted to me for reconsideration for the reasons given, I have concluded that the inferences sought to be drawn by the Crown would require speculation and suspicion. In my assessment, weighing the evidence in this limited fashion, the evidence is not reasonably capable of supporting the inferences advocated by the Crown, and which are essential for committal for trial. In short, the accused's occupancy is insufficient to establish knowledge and control of the seized contraband.

[23] It is for these reasons that I respectfully order a discharge of the accused on all of the counts before me.

Libman J.