Court Information

Court: Ontario Court of Justice

Date: January 27, 2020

Court File No.: Newmarket 1901658 and 1904689

Parties

Between:

Her Majesty the Queen

— AND —

Kwayne Barker and Mark Duncan

Judicial Officer and Counsel

Before: Justice Marcella Henschel

Heard: January 6–10, 2020

Reasons for Judgment Released: January 27, 2020

Counsel:

• Javier Arvizu — counsel for the Crown
• D. Johnson — counsel for the accused Kwayne Barker
• L. Rados — counsel for the accused Mark Duncan

A. Overview

[1] Kwayne Barker and Mark Duncan are charged with several Controlled Drugs and Substances Act (CDSA) offences and several firearms offences under the Criminal Code. Mr. Barker is also charged with several counts of breach of recognizance. Mr. Duncan elected to be tried by a judge and jury in the Superior Court after having a preliminary hearing and as a result a preliminary hearing was held for both accused between January 6–10, 2020.

[2] It is alleged that Kwayne Barker trafficked cocaine to an undercover police officer, DC Marcoux, on October 25, November 1, December 13, and December 19, 2018 at a plaza in Brampton. On December 19, 2018 immediately after Mr. Barker entered DC Marcoux's vehicle to complete the sale of 3.5 grams of cocaine, he was arrested for trafficking cocaine. Following the arrest, 2.9 grams of cocaine was located in the officer's vehicle.

[3] It is alleged that Mr. Duncan was a participant in or party to the drug transaction on December 19, 2018. He drove Mr. Barker to the plaza that day and was arrested a short time after Mr. Barker while he was seated in the driver's seat of the KIA rental vehicle that was parked a short distance from DC Marcoux's vehicle.

[4] After Mr. Barker and Mr. Duncan were arrested, the KIA was searched incident to arrest and 0.6 grams of fentanyl, and 3.8 grams of cocaine was seized. The cocaine was in a ripped plastic bag in the passenger side door and the fentanyl was in a plastic bag located in the area of the driver's seat. A digital scale was located under the driver's seat. Three cellular phones were seized from the vehicle and one from Mr. Duncan.

[5] A search warrant was subsequently executed at 32 Rednor Drive, Brampton, the residence of Mr. Barker and Mr. Duncan. A loaded Glock handgun was found in a shoebox in the basement where Mr. Barker was staying.

[6] Officers also seized a plastic bag containing a large number of pills from the top of a dresser in the bedroom shared by Mr. Duncan and his partner, Kareisha Cyrus (room 6). The pills were sent to Health Canada and were determined to be methylphenidate, tapentadol, methadone, and morphine. DC Reid, a police officer and pharmacist, provided an expert opinion that the pills were possessed for the purpose of trafficking.

[7] The Crown requested that I discharge the accused on the following counts:

• both accused on count 6 of the CDSA information, a charge that Mr. Barker and Mr. Duncan possessed diacetylmorphine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

• Mr. Duncan on count 11, of the CDSA information, a charge of possession of oxandrolone for the purpose of trafficking.

• Mr. Barker on count 1 of the Criminal Code information, a charge of breach recognizance for failure to comply with a condition that he not possess or consume any unlawful drugs or substances.

• Mr. Barker on count 3 of the Criminal Code information, a charge of breach recognizance for failure to comply with a condition that he not possess or consume unlawful drugs or substances.

• Mr. Barker on count 4 of the Criminal Code information, a charge of breach recognizance for failure to comply with a condition that he not possess any weigh scales, hydroponic growing equipment, or other drug paraphernalia.

• Mr. Barker on count 5 of the Criminal Code information, a charge of breach of recognizance for failure to comply with a condition that he only possess one cell phone or one cell phone SIM Card.

• Mr. Barker on count 7 of the Criminal Code information, a charge of breach of recognizance for failure to comply with a condition that he not possess or consume any unlawful drugs or substances.

• Mr. Barker on count 8 of the Criminal Code information, a charge of breach of recognizance for failure to comply with a condition that he not possess any weigh scales, hydroponic growing equipment, or other drug paraphernalia.

• Mr. Barker on count 9 of the Criminal Code information, a charge of breach of recognizance for failure to comply with a condition that he that he not possess any weapon as defined by the Criminal Code.

Accordingly, Mr. Duncan and Mr. Barker are discharged on those counts.

[8] In respect of the remaining charges:

• Mr. Barker is charged with four counts of trafficking in respect of the drug transactions with the undercover officer on October 25, 2018, December 13, 2018, November 1, 2018, and December 19, 2018. (Counts 1 to 4 of the CDSA information). Mr. Duncan is jointly charged with Mr. Barker for trafficking on December 19, 2018. (Count 1 of the CDSA information)

• Mr. Barker and Mr. Duncan are jointly charged with possession for the purpose of trafficking in respect of the 3.8 grams of cocaine located in the passenger side door of the KIA on December 19, 2018 (count 5) and are jointly charged with simple possession of 0.6 grams of fentanyl located in the area of the driver's seat contrary to s. 4(1) of the CDSA. (count 7)

• Mr. Duncan is charged with possession of methylphenidate, tapentadol, methadone, and morphine for the purposes of trafficking contrary to s. 5(2) of the CDSA in relation to the pills located in the plastic bag on the dresser in his bedroom (counts 8, 9, 10, and 12 of the CDSA information).

• Mr. Barker is charged with two counts of breach of recognizance contrary to s. 145(3) of the Criminal Code:

  • for failing to comply with a condition to reside with his surety at an address in Ajax, Ontario and to follow the rules and discipline of the household, contrary to s. 145(3) of the Criminal Code. (count 2 of the Criminal Code information)
  • for failing to comply with a condition that he not possess any weapons as defined by the Criminal Code, contrary to s. 145(3) of the Criminal Code. (count 6 of the Criminal Code information).

• In respect of the Glock firearm seized from 32 Rednor Drive, Brampton, on December 19, 2018, Mr. Barker and Mr. Duncan are jointly charged with:

  • possessing a prohibited firearm, a restricted firearm, or a non-restricted firearm without being the holder of a licence permitting such possession, contrary to s. 91(1)(b) of the Criminal Code (count 13 of the Criminal Code information);
  • possession of a restricted firearm while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the firearm, contrary to s. 92(1)(b) of the Criminal Code (count 14 of the Criminal Code information);
  • possess a loaded restricted firearm contrary to s. 95(1) of the Criminal Code. (count 15)
  • careless storage of a firearm contrary to s. 86(1) of the Criminal Code. (count 16); and
  • Possess a prohibited device which was not a replica firearm, namely an over capacity magazine, while knowingly not being the holder of a licence permitting such possession, contrary to s. 92(2) of the Criminal Code. (count 17).

[9] In addition to these charges the Crown seeks committal of both accused on a charge of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA, in respect of the 2.9 grams of cocaine located in the undercover officer's vehicle on December 19, 2018 following the arrest of Mr. Barker; and in respect of Mr. Barker alone, on a charge of breach of recognizance for failing to comply with a house arrest condition contained in a June 25, 2018 recognizance, contrary to s. 145(3) of the Criminal Code.

[10] Mr. Barker concedes that he should be committed on all counts for which there has not been a discharge with the exception of count 7 of the CDSA information, the simple possession of fentanyl contrary to s. 4(1) of the CDSA.

[11] On January 15, 2020 I held that a reasonable jury properly instructed could find that Mr. Barker was in possession of the fentanyl seized from the Kia contrary to s. 4(1) of the CDSA. Accordingly, I ruled that Mr. Barker will be committed on all counts for which he has not been discharged as indicated above, and on the additional counts upon which the Crown has sought committal including possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA, in respect of the cocaine located in DC Marcoux's vehicle on December 19, 2018; and breach of recognizance for failing to comply with the house arrest condition of the June 25, 2018 recognizance, contrary to s. 145(3) of the Criminal Code.

[12] Mr. Duncan challenges committal on all counts. He submits that the Crown has not established some evidence upon which a reasonable jury properly instructed could find that he trafficked cocaine to DC Marcoux or that he possessed the 2.9 grams of cocaine located in DC Marcoux's vehicle for the purpose of trafficking on December 19, 2018.

[13] Mr. Duncan submits that there is insufficient evidence that he possessed the 3.8 grams of cocaine and 0.6 grams of fentanyl located in the Kia, and the pills located in room 6 of 32 Rednor Drive and he be discharged on those counts. Mr. Duncan further submits that the Crown has failed to establish that a reasonable jury properly instructed could find that he was in possession of the firearm seized from the shoebox in the basement of 32 Rednor Drive, and as a result he submits that he should be discharged on all of the firearm offences.

[14] On January 15, 2020 I held that, in respect of the CDSA charges, there was evidence upon which a reasonable jury properly instructed could find Mr. Duncan guilty of:

• count 1 trafficking on December 19, 2018;
• count 5, possession for the purpose of trafficking, in relation to the 3.8 grams of cocaine seized from the Kia;
• count 7, simple possession of 0.6 grams of fentanyl seized from the Kia; and
• counts 8, 9, 10, and 12, possession for the purpose of trafficking of methylphenidate, tapentadol, methadone, and morphine, in relation to the pills seized from the bedroom at 32 Rednor Drive.

As a result, I ordered that Mr. Duncan should be committed to stand trial on these charges. I also held that there was sufficient evidence to commit Mr. Duncan on the additional count of possession for the purpose of trafficking in relation to the 2.9 grams of cocaine seized from DC Marcoux's vehicle.

[15] In respect of the Criminal Code charges against Mr. Duncan, I found that there was not sufficient evidence for a reasonable jury properly instructed to find that Mr. Duncan was in possession of the firearm. As a result, I ordered that Mr. Duncan be discharged in respect of all of the firearms offences, counts 13, 14, 15, 16, and 17 of the Criminal Code information.

[16] On January 15, 2020 I informed counsel of my conclusions with reasons to follow. These are my reasons.

B. Summary of the Allegations and Evidence

[17] The Crown filed detailed materials pursuant to s. 540(7) of the Criminal Code and called viva voce evidence from DC Marcoux, the undercover police officer, and Det. Beale, the officer in charge of the investigation. Det. Beale gave evidence pursuant to s. 540(7) as well as evidence regarding his personal involvement and observations. The Crown also called several officers who participated in surveillance and/or the execution of the search warrant at 32 Rednor Drive, Brampton including DC Weishar, DC Waung, DC Dopko, DC Romano, DC Gill, and DC Baines.

[18] The Crown also introduced the audio statement of Melisha Fletcher, one of the occupants of 32 Rednor Drive, Brampton, the expert report of DC Reid, a police officer and pharmacist, regarding the pills seized from the bedroom at 32 Rednor, and an expert report from DC Hoekstra, a firearms examiner, pursuant to s. 540(7) of the Criminal Code.

[19] The following summary of the evidence tendered at the preliminary hearing focusses on the matters in issue. I have set out the key aspects of the relevant evidence that would be available to a jury, with recognition that as a preliminary hearing judge I am not called upon to assess credibility or reliability.

[20] Mr. Barker first met the undercover officer, DC Marcoux, after DC Marcoux was tasked to investigate a person known only as "John" who was using the telephone number 437-388-7534 to traffic cocaine at the Pizza Pizza located in a plaza at 3918 Cottrelle Boulevard, Brampton.

[21] On October 25, 2018, DC Marcoux called the telephone number and spoke with a person who identified himself as "John". DC Marcoux arranged to meet "John" to purchase $80.00 of cocaine at the Pizza Pizza at the plaza at 3918 Cottrelle Boulevard, Brampton. When DC Marcoux attended the plaza he was directed by "John", via text message, to attend inside the Vineyard restaurant located next to the Pizza Pizza. DC Marcoux went inside the restaurant and met "John", whom he later identified to be Kwayne Barker. DC Marcoux testified that Mr. Barker gave him a ziplock bag which was later determined to contain .62 grams of cocaine. DC Marcoux intended to pay "John" $80.00 but gave him $120.00 by mistake and left the restaurant. DC Marcoux subsequently reached an agreement with "John" that the overpayment of $40.00 would be used for a future purchase of cocaine. After leaving the restaurant, surveillance officers observed Mr. Barker getting into a white truck a short distance from the plaza. Surveillance officers followed the white truck a short distance before losing the vehicle.

[22] On November 1, 2018, DC Marcoux contacted "John" and arranged to purchase cocaine for $80 at the Pizza Pizza plaza. They agreed that he would receive a $40 credit due to the previous overpayment. DC Marcoux met "John", whom he testified was Kwayne Barker, outside of the Pizza Pizza and was provided with two small ziplock bags containing cocaine. DC Marcoux gave "John" $40.00 and left the area.

[23] The cocaine received by DC Marcoux was seized and weighed and a sample was sent to Health Canada. The ziplock bags contained .96 grams of cocaine.

[24] On December 13, 2018 DC Marcoux made arrangements to purchase $80.00 of cocaine from "John". They agree to meet at the same Pizza Pizza plaza. DC Marcoux contacted "John" once he was at the plaza. "John" attended the driver's side window of DC Marcoux's vehicle and provided DC Marcoux a small ziplock bag. DC Marcoux gave him $80.00. Investigators subsequently weighed the ziplock bag and submitted a sample to Health Canada. The bag contained 1 gram of cocaine. DC Marcoux identified "John" as Kwayne Barker and indicated he was the same person that he met on October 25, 2018 and November 1, 2018.

[25] On December 13, 2019 officer's conducted surveillance on 32 Rednor Drive, Brampton and the plaza at 3918 Cottrelle Blvd, Brampton in anticipation of the drug transaction between "John" and DC Marcoux that day. Members of the surveillance team saw a person they identified as Mr. Barker leave 32 Rednor Drive, walk to the plaza, and conduct the drug transaction with DC Marcoux. Officers observed him return to 32 Rednor Drive.

[26] Mr. Duncan was not seen by surveillance officers or DC Marcoux at any point during the October 25, November 1, or December 13, 2018 drug transactions and the Crown has not alleged that he was involved in the trafficking activities with DC Marcoux on these dates.

Events of December 19, 2018

[27] The first time Mr. Duncan came to the attention of investigators was on December 19, 2018. On December 17, 2018 DC Marcoux contacted "John" by text to arrange to purchase 3.5 grams of cocaine for $260.00. On December 19, 2018 at 7:45 p.m. DC Marcoux spoke to "John" and "John" confirmed that the purchase of 3.5 grams of cocaine would go ahead but said that he was waiting 30 minutes for "his guy". They agreed that the transaction would take place at the Pizza Pizza plaza at 3918 Cottrelle Blvd. sometime after 8:45 p.m.

[28] DC Marcoux arrived at the plaza at 9:00 p.m. and texted with "John". DC Dopko was conducting surveillance of 32 Rednor Drive, Brampton. At 9:45 p.m. DC Dopko observed Mr. Barker and a person subsequently identified as Mark Duncan exit 32 Rednor Drive, Brampton. Mr. Duncan got into the driver's seat and Mr. Barker got into the passenger's seat of a red Kia rental vehicle. The two remained in the vehicle sitting in the driveway for nine minutes. At 9:54 p.m. Mr. Duncan drove the red Kia from Rednor drive to the plaza at 3918 Cottrelle Boulevard. Mr. Duncan parked the Kia near the Pizza Pizza, in front of a "Subway" restaurant.

[29] DC Marcoux testified that he saw the Kia pull into a parking spot in front of the Pizza Pizza. He initially thought there were three individuals in the Kia. After the vehicle parked, at 10:05 p.m. DC Marcoux saw "John" exit the Kia and walk to the front passenger side of his vehicle. "John" entered DC Marcoux's vehicle and DC Marcoux saw that his right fist appeared clenched. They had a short conversation and then both DC Marcoux and "John", Kwayne Barker, were arrested. DC Marcoux testified that Kwayne Barker was the same person he met with on three previous occasions.

[30] Mr. Barker was arrested by PC Waung for trafficking cocaine. While searching him incident to arrest, DC Waung located Canadian currency, a bottle of alcohol, and government issued identification in the name of Mark Duncan. Mr. Barker was wearing a pair of white Adidas "Yeezy Boost" running shoes. The shoes were later seized by DC Bains at 11:55 p.m.

[31] After Mr. Barker's arrest DC Gill searched the front passenger seat of DC Marcoux's vehicle and found cocaine wrapped in a piece of paper, which was subsequently processed by DC Gill and found to weigh 2.9 grams. A sample of the substance was sent to Health Canada and it was confirmed to be cocaine.

[32] As Mr. Barker was being arrested Det. Weishar and DC Bains went to the red Kia and arrested Mark Duncan. He was in the driver's seat and was the only occupant of the vehicle. Det. Weishar searched Mr. Duncan incident to arrest and found a cell phone and a black wallet.

[33] The red Kia was searched incident to arrest and the following items were located:

• A digital scale in a plastic bag under the driver's seat.
• A clear plastic bag with a substance believed to be purple heroin, located in the area of the driver's seat.
• A ripped plastic bag containing cocaine in the passenger door; and
• Three cellphones, one in an armrest, and two in cupholders.

[34] The cocaine seized from the Kia was seized and processed. The total weight of the cocaine was 3.84 grams. A sample of the cocaine was sent to Health Canada and confirmed to be cocaine.

[35] The substance believed to be purple heroin was seized and processed. It had a weight of 0.6 grams. A sample of the substance was sent to Health Canada and the substance was determined to be fentanyl.

[36] A warrant was executed at 32 Rednor Drive, Brampton at 10:15 p.m. When officers entered the residence Curtis Fletcher Brown, Kareisha Cyrus, her daughter Camilla Cyrus, and Melisha Fletcher were present. Avis Fletcher Brown, and Michael Fletcher arrived a short time later. The investigators requested that Tyrell Jones come to the residence and, when he arrived, he was arrested by police.

[37] During the execution of the search warrant police located and seized items from the basement (room 12) and a bedroom on the second floor (room 6).

[38] DC Marcoux searched room 6 and located a white plastic bag that was wrapped and tied in a knot. Inside the white bag were two pill bottles containing pills and a brown small plastic bag tied shut containing a large number of loose pills of varying types. DC Marcoux seized the white bag and its contents and turned the items over to PC Gill who processed them. He sorted the pills by type, placed them into property bag and submitted samples to Health Canada. Health Canada identified the pills as follows:

a. Property Bag #D055008 contained 63 pills. A sample of five pills were sent to Health Canada and identified as Tapentadol.

b. Property Bag #D055009 contained 69 pills. A sample of five pills were sent to health Canada and identified as Morphine.

c. Property Bag #D055006 contained 91 pills. A sample of five pills was sent to health Canada and determined to be Methadone.

d. Property Bag #D055005 contained 2 pills. A sample was sent to Health Canada and determined to be Morphine.

e. Property Bag #D55002 contained 19 pills. A sample of 5 pills was sent to Health Canada and determined to be Morphine.

f. Property Bag #D055000 contained 23 pills. A sample of 5 pills was sent to Health Canada and determined to be Methylphenidate.

g. Property Bag #D054999 contained 95 pills. A sample of 5 pills was sent to Health Canada and determined to be Methylphenidate.

h. Property Bag #D054998 contained 34 pills. A sample of 5 pills was sent to Health Canada and determined to be Methylphenidate.

i. Property Bag #D054994 contained 52 pills. A sample of 5 pills was sent to Health Canada and identified as Methylphenidate.

[39] DC Colin Reid, a police officer and pharmacist, prepared an expert report on the pills seized and addressed the prescription, consumption, use, and distribution, of morphine (an opioid pain killer), methylphenidate (a central nervous system stimulant, also known as Ritalin), tapentadol (a synthetic analgesic pain killer), methadone (an opioid analgesic), and oxandrolone (a steroid). DC Reid concluded that the morphine, methylphenidate, tapentadol, and methadone seized from room 6 were consistent with being possessed for the purpose of trafficking but the oxandrolone (3 pills seized from the gym bag in the basement), a steroid, was for personal use.

[40] DC Reid explained in his report that:

• The morphine tablets were located by the seizing officer on top of the dresser inside a plastic bag containing an assortment of different medications and strengths. The morphine tablets were in 60 mg, 10 mg and 5 mg doses.

• The methylphenidate tablets were seized in pharmaceutical containers, of the type supplied by a manufacturer to a pharmacy. Each container contained different strengths of methylphenidate within the same bottle. The exterior of the two bottles was marked with an X, a common practice by pharmacies after a bottle is opened. It indicates that the bottle is a partially filled bottle for the next pharmacist that fills the prescription. A pharmacy would not dispense medication in a part bottle and would not dispense two strengths of methylphenidate within the same bottle. The stock bottle did not have the required prescription label that would be affixed to a bottle provided to a patient. In his opinion the fact that the bottle was outside of a pharmacy suggested that the bottle was obtained as a result of a pharmacy theft.

• He noted that the pills were brand name pills rather than generic and explained that people who are legally prescribed medication generally obtain generic medication because it is covered by provincial and private drug plans. Brand names pills are easier to traffic.

• The combination of medications is not commonly seen or used when prescribing.

• The combined total quantity of each medication is a large quantity and seems abnormal.

• He concluded that the various medications and strengths were in the possession of the dealer to provide a wide variety of options to the purchaser.

• The combined quantity of drugs, the manner in which they were stored, and his conclusion that they were obtained illegally caused DC Reid to believe that they were possessed for the purpose of trafficking.

[41] Det Weishar, Det. Beale, and DC Waung searched the basement, labelled by investigators as room 12. Det. Weishar located an Adidas "Yeezy Boost" shoe box containing a black Glock firearm. The firearm had four rounds of ammunition in the magazine.

[42] Det. Weishar also located drug paraphernalia in a large ziplock bag in the pocket of a hoodie hanging on a clothing rack next to the stairs. It was in the same general area where the shoe box was located. The large ziplock bag contained a digital scale and smaller blue ziplock bags (dime bags) with white crowns embossed on them. The cocaine sold to DC Marcoux by "John" on December 13, 2018 was packaged in a blue small ziplock bag with white crowns on it that was the same as those located in the pocket of the hoodie.

[43] Det. Beale also searched the basement and seized:

• a piece of mail addressed to Mark Duncan from a desk drawer;
• court documents in the name of Kwayne Barker from the desk drawer;
• a large digital scale that was inside a bag beside the couch, and
• three cell phones inside a desk drawer.

[44] DC Waung located three pills inside a black gym bag under the stairs. The pills were processed and sent to Health Canada and tested as oxandrolone. DC Reid concluded that the oxandrolone was possessed for personal use.

[45] The firearm was tested by PC Mark Hoekstra, a firearms analyst. He concluded that it was a prohibited firearm pursuant to s. 84(1) of the Criminal Code. The magazine seized was also prohibited.

[46] Melisha Fletcher gave an audio taped statement to DC Weisar at 32 Rednor on December 19, 2018. It was marked as Appendix A to the s. 540 materials, Exhibit 1. In her statement Ms. Fletcher told the police that her father, Curtis Fletcher, was the leaseholder of 32 Rednor Drive, Brampton and that her family had lived in the home for ten years. She identified the seven people that lived in the home in addition to herself, and where they stayed within the home as follows:

• Her 25-year-old brother Tyrell Jones. His bedroom was in the basement.
• Her 25-year-old brother Mark Duncan. He stayed in the bedroom on the second floor, (labelled as bedroom 6 by the police), with his girlfriend Kareisha Cyrus and his daughter Kamilla Cyrus.
• Curtis Brown, her father, and Avis Fletcher Brown, her mother stayed in the second-floor master bedroom (labelled room 9 by the police).
• Mark's friend "K", a black male in his 20's. He stayed in the basement with Tyrell.

[47] Ms. Fletcher told DC Marcoux that she did not know "K's full name and said that he was Mark's friend not Tyrell's. At a later point she added that she did not know how well Mark knew him. She said that he was staying in the basement because he did not have a home. She said that Tyrell slept on the bed and kept his clothes on the dresser and on a rack by the stairs, and that "K" did not really have a place for his things. She believed that her parents bought him a basket to put his clothes in. Ms. Fletcher indicated that everyone in the house had access to basement because the laundry facilities were in the basement. She said that "K" did not drive and that Tyrell had a licence but no vehicle.

C. Summary of the Law

Test for Committal

[48] The test for committal at a preliminary inquiry is well established. A preliminary inquiry judge must determine whether there is sufficient evidence in relation to each of an offence's essential elements such that a properly instructed jury, acting reasonably, could convict.

[49] In Charemski the Supreme Court of Canada elaborated on the meaning of the phrase "sufficient evidence". It means evidence sufficient to sustain a verdict beyond a reasonable doubt. The concept of sufficiency "always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case."

[50] Direct and/or circumstantial evidence can support an order to stand trial. It is not within the purview of the preliminary inquiry judge to assess the credibility or reliability of the evidence because to do so would be to usurp the function of the ultimate trier of fact.

[51] In Arcuri, the Supreme Court explained that the test for committal is the same whether the evidence called by the Crown is direct or circumstantial evidence. However, the task of a preliminary hearing judge varies. In the case of direct evidence if the judge determines that the Crown has presented direct evidence as to every element of the offence charged the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial. Where the Crown has not presented direct evidence as to every element of the offence, the question then becomes whether the remaining elements of the offence may reasonably be inferred from the circumstantial evidence. In the case of circumstantial evidence, the judge must weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw. The weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilty. As explained by Hill J. in Foster, in circumstantial evidence cases there may exist not one but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact.

[52] Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. Put simply the judge is to consider the prosecution's case in its best possible light and asks only whether the evidence if believed, could reasonably support an inference of guilt.

[53] Inferences cannot be based on speculation no matter how seemingly reasonable. The difficulty for preliminary inquiry judges is to distinguish the fine line that exists between permissible inferences and impermissible speculation. There are two ways in which inference drawing can become impermissible speculation. First, the evidence must establish the primary facts. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation. Second, where the proposed inference cannot reasonably and logically be drawn from the established primary facts, it becomes impermissible speculation.

[54] It is necessary for the preliminary inquiry judge to consider the cumulative effect of the evidence said to point towards guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence. It is not part of the role of the preliminary inquiry judge to consider whether there might be valid positive defences. In order to obtain a committal for trial, the prosecution is not required to negate defences.

Party Liability

[55] Section 21 of the Criminal Code provides as follows:

21 (1) Everyone is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[56] An individual can be found guilty of an offence as a principal, the person who actually committed the offence, or on the basis of party liability as a person who aided or abetted the principal. The conduct requirement requires proof that an aider or abettor provided actual assistance to the principal by doing something that assisted the principal to commit the offence or encouraged the principal to do so. The fault element requires that the aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence.

[57] The law with respect to aiding and abetting, under s. 21(1) of the Criminal Code was articulated in Dunlop and Sylvester v. The Queen as follows:

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

Trafficking

[58] Trafficking has a broad definition in the CDSA. Section 2(1) of the CDSA defines traffic:

traffic means, in respect of a substance included in any of Schedules I to V,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

Possession

[59] To prove that an individual was in possession of a controlled substance contrary to s. 4(1) the Crown must prove:

(1) that the individual was in possession of a substance;

(2) that the substance was a controlled substance, and

(3) that the individual knew (or was reckless or wilfully blind) that the substance was a controlled substance.

[60] If charged with possession for the purpose of trafficking contrary to s. 5(2) of the CDSA the Crown must prove the above elements and the additional element that the purpose of the possession was for trafficking.

[61] Mr. Duncan concedes that there is sufficient evidence to establish the nature of the substances, and, if possession is made out, that the substances (other than fentanyl) were possessed for the purposes of trafficking. At issue is whether there is sufficient evidence of possession. Mr. Duncan submits that there is insufficient evidence for a properly instructed jury acting reasonably to find that Mr. Duncan was in possession of the pills in the bedroom, the fentanyl and cocaine in the Kia, the cocaine located in DC Marcoux's vehicle, and the firearm found in the basement. As a result, Mr. Rados submits that Mr. Duncan should be discharged on all counts.

[62] As noted above, Mr. Barker has conceded committal on all counts except the charge of possession of fentanyl. At issue is whether there is sufficient evidence to establish that Mr. Barker was in possession of the fentanyl located in the Kia.

[63] Section 2 of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code. As a result, the subsection is applicable to both the determination of whether Mr. Duncan and Mr. Barker were in possession of the controlled substances and whether they were in possession of the firearm. Subsection 4(3) of the Criminal Code provides as follows:

4(3) For the purposes of this Act,

(a) A person has anything in possession when he has it in his personal possession or knowingly,

(i) Has it in the actual possession or custody of another person, or

(ii) Has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) Where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[64] The section establishes three, sometimes overlapping or co-existing, types of possession:

i.) personal possession as outlined in s. 4(3)(a);

ii.) constructive possession as outlined in s. 4(3)(a)(i) and s. 4(3)(a)(ii), and

iii.) joint possession as defined in s. 4(3)(b).

The Crown can rely on any one or more to establish possession.

Personal Possession

[65] To establish personal possession the Crown must prove manual handling or physical contact, knowledge of what the substance is, and some measure of control. Person possession is established where an accused exercises physical control over the prohibited object with full knowledge of its character and with intent to deal with it in some deliberate manner. Where a person knowingly has personal possession of a drug, the requisite element of control will, in the absence of evidence to the contrary, invariably be present as well. Generally, personal possession will involve situations where drugs are found on an individual's person, such as where the individual is holding them, keeping them in a pocket, or carrying them in a bag or purse. A person may be in personal possession where an item is found in close proximity to them in a place such as a vehicle.

Constructive Possession

[66] Constructive possession is established where an accused has the subject matter "in the actual possession or custody of another person" (4(3)(a)(i) or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" s. 4(3)(a)(ii.). Proof of physical possession or manual handling by the accused is not required. As explained by MacFarlane et al, the subsection is directed to situations where someone else is holding the item for the suspect, or the suspect has placed the item in another location so that s/he can deal with it at some later time. It extends "possession" to situations in which actual physical control cannot be established.

[67] In Morelli the Supreme Court of Canada explained that constructive possession is complete where the accused:

1. Has knowledge of the character of the object,

2. Knowingly puts or keeps the object in a particular place, whether or not that place belongs to him; and

3. Intends to have the object in the particular place for his "use or benefit" or that of another person.

In order to constitute constructive possession, the Crown must establish "knowledge which extends beyond mere quiescent knowledge" and some measure of control or right of control over the subject matter.

Joint Possession

[68] In the case of joint possession, pursuant to s. 4(3)(b), if one person is in possession of a drug, or other contraband, others who have knowledge of that possession and consent to it are deemed to be in possession. Passive acquiescence is not sufficient to establish joint possession. The accused person must demonstrate some form of active concurrence.

[69] In addition to knowledge and consent, as with constructive possession, the individual must have "some measure of control over the subject matter". In Terrence, the Supreme Court accepted that control means power or authority over the object in question. A passenger in a stolen car with knowledge the car is stolen, who consents to it begin driven, will not be in possession unless he can exercise some control over the car.

[70] Circumstantial evidence is evidence "that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred". Crown counsel may prove the essential elements of possession by direct evidence, by circumstantial evidence, or by a combination of direct and circumstantial evidence. A trier of fact is permitted to infer knowledge from circumstantial evidence.

[71] In this case, arguably Mr. Duncan may have been in personal possession of the fentanyl and cocaine discovered in the KIA at the time of his arrest. It was in close proximity to him in the car. The Crown could also proceed on the basis that he was in constructive possession of these items and/or joint possession with Mr. Barker. Neither the pills, the cocaine found in the undercover police officer's vehicle, nor the firearm were found in the physical possession of Mr. Duncan. As a result, I must determine whether there is some evidence upon which a jury properly instructed could conclude that Mr. Duncan was in constructive possession or joint possession of the cocaine in DC Marcoux's vehicle, the pills located in the bedroom, and the firearm located in the basement. I must consider whether Mr. Barker was in person, constructive, and/or joint possession of the fentanyl located in the Kia.

D. Analysis

[72] I am satisfied that a reasonable jury properly instructed could convict Mr. Duncan of trafficking cocaine on December 19, 2018 on the basis that he was a participant in the offence or a party to the offence. I am satisfied that a jury could convict Mr. Duncan of possession for the purpose of trafficking of the 2.9 grams of cocaine that was located in DC Marcoux's vehicle on the basis that he was in constructive possession or joint possession with Mr. Barker of the cocaine. I am satisfied that a reasonable jury properly instructed could conclude that Mr. Duncan was in personal possession, constructive possession, or joint possession of the 3.9 grams of cocaine located in the Kia and could convict him of possession for the purposes of trafficking. I find that a reasonable jury properly instructed could find Mr. Duncan in personal possession, constructive possession, or joint possession of the fentanyl in the Kia. I also find that a reasonable jury properly instructed could find that Mr. Barker was in constructive or joint possession of the fentanyl located in the Kia and could convict him of the offence. I reach these conclusions based on the totality and cumulative effect of the evidence at the preliminary hearing including but not limited to the evidence that:

• Kwayne Barker trafficked drugs to DC Marcoux on October 25, November 1, December 13, and December 25, 2018.

• Mr. Duncan was Kwayne Barker's friend and allowed him to stay in his parent's residence in the basement.

• On December 19, 2018 at 7:45 p.m. DC Marcoux spoke to Kwayne Barker and during the conversation, Kwayne Barker confirmed that the purchase of 3.5 grams of cocaine would go ahead but he was waiting 30 minutes for "his guy". It was agreed that the transaction would take place at the plaza at 3918 Cottrelle Blvd, Brampton sometime after 8:45 p.m.

• On December 19, 2018 at 9:45 p.m. DC Dopko observed Mr. Barker, and Mr. Duncan exit 32 Rednor Drive, Brampton. Mr. Duncan got into the driver's seat of the red Kia which was a rental vehicle and Mr. Barker got into the passenger's seat. They remained in the vehicle, sitting parked in the driveway for nine minutes before driving the short distance to the plaza at 3918 Cottrelle Blvd, Brampton.

• Mr. Duncan parked the car and Mr. Barker exited and walked to DC Marcoux's vehicle. Mr. Duncan did not leave, but instead waited for Mr. Barker.

• Mr. Barker entered DC Marcoux's vehicle and DC Marcoux saw that his right fist appeared clenched.

• Shortly after Mr. Barker's arrest 2.9 grams of cocaine was found wrapped in a piece of paper in DC Marcoux's vehicle.

• When Mr. Barker was arrested, he was in possession of government issues identification in the name of Mark Duncan.

• Mr. Duncan was in possession of a cell phone at the time of his arrest.

• Following the arrests of Mr. Barker and Mr. Duncan the Kia was searched and cocaine was found in a ripped plastic bag in the passenger side door of the Kia, fentanyl and a digital drug scale was found under the driver's seat, and three cellular phones were located in addition to the cell phone that was located on Mr. Duncan. As a result, before Mr. Duncan was removed from the vehicle there were four cell phones in the Kia.

• A large number of pills, worth approximately $4,500 including tapentadol, morphine, methadone, and methylphenidate were located in a bag on a dresser in Mr. Duncan and Kaleisha Cyrus's bedroom. The expert opinion of DC Reid was that the pills were possessed for the purpose of trafficking based on the quantity and variety of the medication, the varying strengths of the medication, the combination of medication, the manner in which the pills were stored, and that they appeared to have been obtained illegally.

[69] Based on all the evidence a jury could infer that Mr. Duncan agreed to drive Mr. Barker to the plaza to help him to complete his offer to sell cocaine to DC Marcoux knowing that Mr. Barker intended to sell cocaine to another person. A jury could infer that Mr. Duncan remained at the plaza in the vehicle after Mr. Barker got out of the Kia because he was waiting for Mr. Barker and was continuing to assist him by acting as a look out during the drug transaction and/or by planning to drive him away from the plaza upon completion of the deal.

[70] Mr. Duncan and Mr. Barker left the house together. A jury could infer that Mr. Duncan and Mr. Barker sat in the driveway for nine minutes because they were jointly preparing to complete the drug deal that was about to transpire with DC Marcoux. The cocaine in the passenger side of the Kia was in a ripped plastic bag. The cocaine subsequently found in DC Marcoux's vehicle was wrapped in a paper. On every other occasion Mr. Barker provided the officer cocaine, it was packaged in a small ziploc bag. There was a digital drug scale under Mr. Duncan's seat. A jury could conclude that while sitting in the driveway Mr. Duncan and Mr. Barker measured out 2.9 grams of cocaine from the larger amount of cocaine and that they placed 2.9 grams in a piece of paper to give to DC Marcoux and left the remaining 3.8 grams in the ripped plastic bag in the passenger door area of the Kia. While it is not the only inference, it is an available inference. In inferring knowledge, a jury could also consider that Mr. Barker and Mr. Duncan were friends and were both involved in the drug trade. They could infer that Mr. Barker would be open with Mr. Duncan about his trafficking activities. Notably, Mr. Barker had Mr. Duncan's identification in his pocket. If Mr. Barker did not want Mr. Duncan to know about the drug transaction on December 19, 2018 he could have walked the short distance to the plaza instead of being driven to the location by Mr. Duncan. In addition, Mr. Barker told DC Marcoux that he had to wait for his guy before he could complete the transaction. A jury could find that Mr. Duncan was Mr. Barker's "guy" and assisted Mr. Barker to complete the drug transaction by supplying the drugs, and/or acting as a driver and lookout.

[71] Even if a jury did not draw the inference that Mr. Barker and Mr. Duncan measured the drugs while sitting in the driveway, there is more than sufficient evidence to justify committal. The nature of the items in the Kia, including cocaine, fentanyl, a digital drug scale and three cellular phones (in addition to the phone on Mr. Duncan's person) and the location of those items support the inference that Mr. Duncan knew of and consented to Mr. Barker's possession of cocaine, to the presence of the cocaine and fentanyl in the Kia and that Mr. Barker intended to traffic cocaine at the plaza. The multiple phones, common tools of the drug trade, were in plain view and the fentanyl and digital drug scale were in very close proximity to Mr. Duncan, underneath his seat. The cocaine in the passenger door was also in relatively close proximity to Mr. Duncan and must be considered in the context of all of the other items in the car.

[72] As the driver of the car, Mr. Duncan had control over the car and a measure of control over its contents. It would be open to a jury to find that he had control of the substances in the vehicle he was driving.

[73] A jury could conclude that Mr. Duncan was a party to Mr. Barker's drug trafficking and possession of cocaine for the purposes of trafficking, including both the cocaine in the car and that recovered from DC Marcoux's vehicle. A jury could conclude that in respect of the cocaine and fentanyl seized from the Kia that Mr. Duncan was in personal possession given the proximity of the drugs to him, or that he stored the fentanyl under the driver's seat for the use and benefit of himself, or himself and Mr. Barker; and that he had the cocaine that was in the passenger door area for his benefit and/or the benefit of Mr. Barker.

[74] I am satisfied that a jury could infer that the cocaine located in DC Marcoux's vehicle was in the possession of Mr. Barker immediately prior to his arrest and that he possessed it to sell it to DC Marcoux and that Mr. Duncan was a party to this transaction.

[75] Given the totality of the evidence, a jury could infer that Mr. Duncan was engaged in a joint enterprise with Mr. Barker and that he had knowledge of the fentanyl and cocaine in the Kia, and the cocaine left by Mr. Barker in DC Marcoux's vehicle, and that Mr. Duncan consented to the drugs being there. Evidence indicating a joint venture in a vehicle with respect to drugs entitles a jury to find possession on the part of those not found in physical custody.

[76] I am satisfied that a jury could infer that Mr. Barker was, or had been in the moments before his arrest, in personal possession of the cocaine in the Kia and the cocaine in DC Marcoux's vehicle and as such had a measure of control over the cocaine. He demonstrated control over the cocaine by arranging the drug deal with DC Marcoux. I am satisfied that on the totality of the evidence a jury could infer that all of the drugs and drug paraphernalia in the vehicle were interrelated and that Mr. Barker was in constructive possession of the fentanyl and drug scale that were under the driver's seat of the Kia or that he was in joint possession of these things with Mr. Duncan and that given the control he exercised over the cocaine and the nature of a joint enterprise, a jury could find that Mr. Barker had a measure of control over the fentanyl.

Possession of Pills in Room 6

[52] In respect of the pills seized from room 6 at 32 Rednor Drive, Mr. Duncan was one of two adult occupants in the room. He was a resident, not a visitor. The pills were located on top of a dresser in a plastic bag that was tied shut. While the contents of the bag were not in plain view, the bag itself was obvious and in plain view. The bag was not concealed or hidden in any way. It was placed beside items that would be used regularly by the occupants in the room including baby wipes. The placement of the bag permits the inference that the person who placed the bag on the dresser was not trying to conceal it or its contents from the other occupant of the room. The circumstances permit the inference that Mr. Duncan, an occupant of the room, had knowledge of the bag and of its contents.

[53] Moreover, given the quantity and value of the pills, a total street value of at least $4,497 based on a conservative estimate according to DC Reid's report, a jury could readily infer that the pills were not left unattended or entrusted to somebody who did not know the nature of the contents of the bag. A jury could reasonably infer that the drugs were not left behind by a third-party non-resident of the room, but rather belonged to one or both of the occupants of the room.

[54] As an occupant of the room Mr. Duncan had control over the items in the room, including the bag containing the pills. He had the ability to exercise power or some measure of control over the pills in his bedroom. A jury could find that Mr. Duncan was storing the drugs there for his own benefit, or was in joint possession with Ms. Cyrus, on the basis that he had knowledge of the drugs and consented to them being there. A court may draw "appropriate inferences from evidence that a drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug".

[55] In assessing whether Mr. Duncan was in possession of the bag of pills, a jury could consider Mr. Duncan's other activities of December 19, 2018, including that he drove Mr. Barker, a person a jury could readily find was a drug dealer, to the plaza to carry out a drug transaction, in a rental vehicle that contained cocaine, fentanyl, three cellular phones and a digital drug scale. This evidence is relevant to establish Mr. Duncan's participation in a trafficking scheme, and not for the purpose of propensity. A jury could consider it in the context of the evidence as a whole in assessing if the elements of constructive possession are established. I am satisfied that on the totality of the evidence a reasonable jury properly instructed could conclude that Mr. Duncan was in possession of the pills for the purposes of trafficking.

[56] This case is distinguishable from R. v. Grey, relied upon by the defence. In Grey the police located cocaine hidden in the master bedroom of Mr. Grey's girlfriend's apartment. Grey did not live in the apartment but admitted that he stayed there several days a week. There was men's and women's clothing in the bedroom. The police located the cocaine hidden in a cassette player and in a plant on a bedside table. They also located scales and personal papers in the accused's name on a shelf in the closet. A large quantity of money was in a jean skirt hanging in the closet. Grey testified and denied knowledge of the cocaine. Although the trial judge accepted his evidence that the scales were used for measuring ingredients at the restaurant he worked at, the trial judge convicted Grey finding that he and his girlfriend were in joint possession of the cocaine. The only issue on the appeal was the sufficiency of evidence of knowledge.

[57] The Court of Appeal held there was insufficient evidence to establish knowledge. The Court emphasized that the cocaine was hidden and held that the trial judge was not entitled to infer knowledge from the accused's occupancy in the bedroom. The court indicated that Grey did not rent the apartment, other people frequented the apartment, and he was not a permanent occupant.

[58] Grey is distinguishable. It was a trial decision and the Court of Appeal was considering whether the evidence was sufficient to establish possession beyond a reasonable doubt, not whether there was sufficient evidence for a committal to stand trial. In Grey the accused testified and denied knowledge. In addition, the contraband in Grey was hidden. In this case it would be open to a jury to find that the bag of pills was not hidden but rather was in plain view on top of a dresser. Finally, unlike Grey who was not a permanent occupant of the apartment, there is evidence that Mr. Duncan lived fulltime at 32 Rednor.

[59] Chambers and Sparling support the Crown's position that there is evidence upon which a properly instructed jury could conclude that Mr. Duncan was in possession of the pills seized from room 6. Both cases considered whether there was sufficient evidence of possession to justify a committal to stand trial.

[60] In Chambers, the police found cocaine in Ms. Chambers bedroom. It was hidden under a woman's sweater on the top shelf of an open closet in the bedroom. The closet contained women's clothing. Several photos of Ms. Chambers were found under the sweaters. Ms. Chamber's purse was in the bedroom. A drug debt list was on a dresser in the bedroom containing women's items. Ms. Chambers told police that her boyfriend had been staying with her in the bedroom for a week. Men's clothing was in the bedroom along with a gym bag which contained a small amount of cocaine. Ms. Chambers boyfriend spoke to he police during the execution of the warrant and admitted that he owned the gym bag.

[61] The Court of Appeal concluded that there was sufficient evidence that Ms. Chambers was in possession of the cocaine to justify committal. The Court held that there was some evidence from which it could be inferred that Chambers knew the cocaine was in her room, a matter that the Court observed had been properly conceded at the preliminary hearing. The primary issue before the Court of Appeal was whether there was sufficient evidence of control. The Court held that since the respondent had the power to consent or withhold consent to her room being used to store the cocaine there was sufficient evidence of control. The Court of Appeal made clear that a court may draw an inference of control where a prohibited drug is found in a room under the control of a suspect "where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug". I am satisfied based on all the circumstances that a jury could draw an inference on the facts of this case that Mr. Duncan was aware of the pills in his bedroom and that he had a measure of control.

[62] In Sparling, the police located cocaine, cannabis resin, drug paraphernalia, and a large quantity of cash in plain view in an open area of a four-bedroom apartment leased to Sparling, his wife, and a third party. Sparling's common law wife and her mother were present when the warrant was executed. Sparling attended the apartment while the police were conducting the search. The Court of Appeal found that the motions court had erred in setting aside a committal order and held that there was sufficient evidence of knowledge and control to commit the accused to stand trial for possession for the purpose of trafficking.

[63] I am satisfied that a reasonable jury properly instructed could convict Mr. Duncan of possession for the purposes of trafficking in relation to the pills seized from his bedroom. As a result, Mr. Duncan is committed to stand trial in respect of the possession of methylphenidate, tapentadol, methadone, and morphine for the purposes of trafficking.

Firearms Offences

[64] In respect of the firearms related charges, in my view counsel for Mr. Barker properly conceded committal on the firearms offences. Mr. Barker is linked to the basement, the shoebox, and the gun. He was living in the basement where the gun was located and was wearing Yeezy Boost shoes that matched the shoe size referenced on the Yeezy Boost shoe box where the gun was found. A jury could readily infer the Yeezy Boost Adidas shoe box was Mr. Barker's as was the gun stored in the box. There is strong evidence that Mr. Barker was involved in the drug trafficking. A handgun is a common tool of the drug trade. There is compelling circumstantial evidence capable of supporting the finding that Mr. Barker was in constructive possession of the gun which he left in the shoebox in the basement.

[65] However, in my view there is insufficient evidence for a reasonable jury properly instructed to find that Mr. Duncan was in possession of the firearm and ammunition. Mr. Duncan was not an occupant of the basement and there is no evidence linking him to the shoebox. The single piece of mail located in the desk in the basement which had Mr. Duncan's name on it does not permit an inference that he had knowledge of the gun and was in joint possession of the gun. An envelope or document can be easily and inadvertently moved from one part of a home to another. Moreover, there is no date on the envelope or any other evidence before me capable of establishing how long the envelope was in the desk or in the basement. Moreover, the gun was not found in the desk.

[66] I do not accept the Crown submission that a jury could infer that Mr. Duncan had knowledge of the gun in the basement because Mr. Barker was his friend and he allowed him to stay in the home or as a result of his involvement in Mr. Barker's drug trafficking activities on December 19, 2018. Mr. Barker did not take the firearm with him during the December 19, 2018 drug transaction. If he had, joint possession may have been an available inference, but that is not the evidence.

[67] In Turner, a case which in my view had a stronger evidentiary foundation to support an inference of possession of a firearm than the facts of this case, the Ontario Court of Appeal held that there was insufficient evidence to commit the accused to stand trial for several firearms offences. The firearm was located when police executed a search warrant at 5:00 a.m. on a two-bedroom apartment and found a loaded firearm "carefully hidden" among clothing in a bedroom closet. The appellant, his girlfriend, and her daughter were in the apartment. When the police entered the apartment, the appellant was standing just inside the doorway of the bedroom where the firearm was located. His driver's licence was on the bedroom floor. His girlfriend's passport and her daughter's passport were in the closet where the firearm was located. On appeal the Court of Appeal reinstated the preliminary hearing justice's order discharging the accused, agreeing that an inference of knowledge and control could not be drawn.

[68] Mr. Duncan was not one of the two occupants of the basement and the gun was hidden in a shoebox. It was not in plain view. There was no other evidence connecting Mr. Duncan to the gun. As a result, I am not satisfied that there is some evidence upon which a properly instructed jury acting reasonably could find that Mr. Duncan was in constructive or joint possession of the gun. In my view there is insufficient evidence for a jury to convict. Mr. Duncan is discharged on all of the firearm related offences.

E. Conclusion

[69] In summary, as a result of my findings, Mr. Duncan is committed to stand trial on counts 1, 5, 7, 8, 9, 10, and 12 of the CDSA information. Mr. Duncan is discharged on counts 6 and 11 of the CDSA information and on all counts on the Criminal Code information. As requested by the Crown, Mr. Duncan is committed to stand trial on the additional count of possession for the purpose of trafficking in relation to the 2.9 grams of cocaine located in DC Marcoux's vehicle on December 19, 2018.

[72] Mr. Barker is committed to stand trial on counts 1, 2, 3, 4, 5, and 7 of the CDSA information. He is discharged on count 6 of the CDSA information. Mr. Barker is committed to stand trial on counts 2, 6, and 13, 14, 15, 16, and 17 of the Criminal Code information. He is discharged on counts 1, 3, 4, 5, 7, 8 and 9 of the Criminal Code information. The Crown previously withdrew counts 10, 11, and 12 of the Criminal Code information. As requested by the Crown, Mr. Barker is also committed to stand trial on the additional count of possession for the purpose of trafficking in relation to the 2.9 grams of cocaine located in DC Marcoux's vehicle on December 19, 2018 and on a charge of breach of recognizance for failing to comply with the house arrest condition of the June 25, 2018 recognizance, contrary to s. 145(3) of the Criminal Code.

Released: January 27, 2020

Signed: Justice Marcella Henschel