Court File and Parties

DATE: March 19, 2021 INFORMATION NO.: 2811-998-18-37447 ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN and BRANDON BROWN

BEFORE THE HONOURABLE MR. JUSTICE G. WAKEFIELD, AT THE COURTHOUSE AT 150 BOND ST. E., OSHAWA, ONTARIO ON FRIDAY, MARCH 19, 2021.

Reasons for Judgment

A P P E A R A N C E S: I.P. Greenway Counsel for the Federal Crown C. Avery Counsel for Mr. Brown

WAKEFIELD J. (Orally)

Brandon Brown stands charged with one count of possession for cocaine for the purpose of trafficking and one count of possession of marijuana for the purpose of trafficking.

The Crown case consisted of the complainants, Eve Liley and Matthew Liley, P.C. Darryl Richards, Sergeant Shawn Duxbury, Detective Constable Kyle Lloyd, Detective Constable Fotheringham, Detective Constable Lee Marsh and P.C. Keith Ellis.

The defendant also testified, thereby engaging all three branches of W.(D.)

The Lileys are a couple who reside behind the residence belonging to the parents of the defendant. They awake the morning of February 4th, 2018 in anticipation of a morning coffee, look out their kitchen window and observe, adjacent to their back fence, a suitcase and a cardboard box. They confirmed the two items were not present the night before. They further confirmed that it had snowed the previous night and that when Mr. Liley went out to the back yard, there were no footprints in his back yard other than those made by his walking over to investigate the items after having called the police. Mr. Liley opened the suitcase and discovered wrapped packaging which he believed to be marijuana. He called the police back and advised them of the discovery and then the couple awaited the arrival of the police.

Subsequently taken photographs display the box and the suitcase, which appear to have snow on top, as well as snow underneath. The likely inference is that they were placed there at some point in the evening after the snow started and before it finished snowing. My recollection is that the officer who first attended on the scene also suggested that it was still partially snowing when he arrived.

In any event, in response to the call-back to the police, P.C. Darryl Richardson attended the Liley residence. He took photographs of the back yard and the two containers by the fence. He confirmed that there was only one set of footprints in the snow leading from the back of the Liley residence up to the items and returned to the house. There were no footprints in the snow from either side of that house. This officer did observe footprints in the back neighbour’s yard from that house up to and returning to the area of the fence where the suitcase and box were located. There were no footprints from either side of the back door of the neighbour’s house. No measurements of the footprints or detailed photographs were taken of the various footprints to see if they were made of difference of types and sizes of footwear.

Seizing the drugs and containers, the officer called for backup unit to keep an eye on his cruiser where he had put the drugs. He then returned to the complainants’ back yard where he now sees the defendant walking a dog in the back yard of the other house.

The defendant identified himself and advised that the house belonged to his parents, who were not home, and that he no longer resided there. The defendant was co-operative with the officers and agreed to meet with the officer. However, I do recall that the Lileys testified having seen the defendant’s father in the back yard earlier that morning.

P.C. Richards then drives around to the other house. He notices a sedan registered to the defendant’s mother in the driveway with snow wiped off the windshield and fresh tire tracks in the snow. There is no evidence of older tire tracks consistent with the amount of snow above and beneath the suitcase and box, which would be suggestive of an earlier vehicle being on scene during the timeframe of when the suitcase and box were placed on the Liley property, nor was there any evidence whether there were any footprints leading up to the front door of the Brown residence.

The defendant advised that he had just arrived to walk the dog and feed the dog and cat. The officer did not go into the back yard as the gate was frozen shut, which was the only exterior access to the back yard. There were no footprints in the snow leading up to that gate. The defendant was agreeable should the officer wish to hop the fence and examine the back yard, an opportunity the officer apparently declined.

Sergeant Shawn Duxbury is an officer with the Forensic Investigative Services Unit. He processed the exhibits and described the manner which the exhibits are securely kept.

Detective Constable Kyle Lloyd is a member of the Drug Enforcement Unit and was called in briefly to assist P.C. Richards in processing the initially seized objects. He described the manner of processing to ensure there is no cross-contamination between exhibits. He advised that there were no duty book memo entries and that he had previously lost any rough notes that were made contemporaneously. He was not aware that the defendant’s father was in custody at the time of the involvement and did not interview either the father, nor the mother or obtain any Search Warrants. As such, there is no evidence as to what would be inside the parents’ residence, nor if any drug residue, for instance, could have been on the freezer bag sealing device. P.C. Lloyd also described the difference between Ziploc bags and freezer bags, the latter being subject to sealing with a separate sealing device.

Detective Constable Michael Fotheringham, at the relevant times, was then on secondment to Forensic Identification, garnering training in that unit and finding fingerprints on the seized items. He did so under the supervision of an experienced fingerprint analyst. He identified the defendant’s fingerprints on four bags, a white kitchen garbage bag, two Ziploc bags and a sealer bag.

The evidence of P.C. Michael Best was conceded as to the rather unremarkable arrest and release of the defendant, albeit many months after the investigation had been completed.

Detective Constable Lee Marsh is also a member of the Drug Enforcement Unit and proposed and found to be an expert and opined, unsurprisingly, that the amount of the drugs was more than personal possession and evidence of possession for the purpose of trafficking with a valuation of up to about $60,000.

P.C. Keith Ellis, at the time of the investigation, was a detective in the Forensic Investigation Unit, who confirmed identification of the defendant’s prints on the noted plastic bags, as well as the prints from an additional three other people, the antecedents of whom did not become evidence in the trial, other than that elicited from the defendant with respect to one person he was aware of. He confirmed the placement and direction of the fingers on the bags when the prints were affixed, none of which would seem to be consistent with the actual movement of packaging, though the prints could have been left at any time before or after the drugs were sealed.

The defendant testified. He denied anything to do with the drugs or knowledge of them. He testified that he would often help his mother when cooking and would touch both Ziploc and freezer bags and put any not used back in their containers.

He confirmed taking out the garbage and I accept the defence submission that would amount to at least an inference of coming into contact with the white kitchen bags.

It was not clear but there is an inference in his testimony that he did not know his father had returned from a rental cottage the Sunday morning. Otherwise, there would be no need for the defendant to attend and care for the dog and cat.

He did not have direct knowledge but believed that there were two tenants living in the basement apartment from which footprints could have originated in the back yard, as well as from the upper deck.

The case boils down as to whether the defendant’s prints on some of the bags found on the drug packaging, in conjunction with the proximity of the defendant’s parents’ residence and the inference that such a valuable property would not be left unwatched amounts to proof beyond a reasonable doubt.

In this case, is this a case of finding a button and police sewing a circumstantial vest onto the button to found a conviction? What do I not know? Any circumstances why something as valuable would be dropped onto a neighbour’s yard, such as a police presence the night before or any sort of a disturbance that would prompt someone to let go of control of the drugs. The Crown did suggest the possibility of the parents returning that day but apparently, the father was already there before the attendance of the son.

The Brown residence was not searched, nor did I hear any evidence about the defendant’s parents apart from the defendant’s description, and any antecedents, nor if the same sort of plastic bags would be found in the residence.

I do not know if the other individuals identified prints were found on the same or different bags, where the defendant’s prints were found, nor, apart from the inference of some sort of record, whether they are involved in the drug trade. I do not know if there is a Keurig appliance in the house, or the size and type of footprints in the snow, or corroboration if there is any line of sight from the Brown residence beyond the fence as to where the drugs were dropped. Again, such valuable property would presumably be within observation if not abandoned by lack of evidence of that.

I am certainly not comfortable in any inference that the bags would only be used once and not, such as in my own household, regularly reused rather than adding to the plastic pollution, with the possibility of a multitude of different people’s prints on the bags in my kitchen. As such, I cannot accept that a bag with a print found within a sealed bag enhances the circumstantial weight of the print as I still do not know when that print was affixed nor the source of the bag found within the freezer bag.

Indeed, I find that the police investigation in this matter seems to be remarkably disinterested in anything beyond arresting one of the fingerprint individuals. The public deserves far better from the police.

The defendant withstood cross-examination but his testimony must still leave me in doubt. The case against him, as conceded by counsel, is well beyond suspicion or reasonable probability and even past a balance of probabilities if he is disbelieved. As other Crowns have described similarly situated accused, for their story to be true, they must be one of the unluckiest people on the planet. This defendant may very well be such an unlucky person.

While I am highly suspicious, I do not find myself disbelieving the accused. I certainly find that his testimony might reasonably be true.

I also find that the circumstantial case is simply not one which amounts to proof beyond a reasonable doubt given the many unknowns with the result in conflicting inferences which might be drawn from the evidence, and especially the prints, and certainly find that the involvement of the defendant is not the only reasonable inference in this case.

Mr. Brown, stand up. I am finding you not guilty of both charges. You can have a seat again.