ONTARIO COURT OF JUSTICE

CITATION: R. v. Lozoomi-Garmroodi, 2021 ONCJ 623

DATE: 2021 04 23

COURT FILE No.: Central East Region: Oshawa Courthouse: Info No:19-36907

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KAVEH LOZOOMI-GARMROODI AND JEVAUGHN KNIGHT-ALLEN

Before Justice Peter C. West

Heard on November 16, 17 2020, March 3, 4 and 5, 2021.

Reasons for Judgment released on April 23, 2021.

Mr. J. Frost........................................................................................... counsel for the Crown

Mr. M. Rieger................................ counsel for the accused Kevah Lozoomi-Garmroodi

Mr. R. Kodsy........................................ counsel for the accused Jevaughn Knight-Allen

WEST J.:

Overview

[1] Kaveh Lozoomi-Garmroodi and Jevaughn Knight-Allen are charged with one count of possession of cocaine for the purpose of trafficking. Mr. Lozoomi-Garmroodi and Mr. Knight-Allen brought a joint Charter application alleging the police infringed their ss. 8, 9, 10(a) and 10(b) Charter rights in respect of a police traffic stop of the Nissan Altima they were travelling in and the search of that car, where a quantity of cocaine was discovered. The defence argued the cocaine discovered in the car should be excluded under s. 24(2) of the Charter because the evidence was obtained in a manner that infringed their Charter rights and to admit it would bring the administration of justice into disrepute.

[2] It was agreed by counsel at the commencement of the trial that the Charter application could be heard by way of a blended hearing and before the Crown closed his case the defence could call any evidence they wished on the Charter application. After the completion of any defence evidence called on the Charter application the Crown would close his case. It was agreed if the defence wanted to call any evidence on the trial proper they would do so then. After all of the evidence was received it was agreed counsel would make submissions on the Charter application and whether the Crown had proven beyond a reasonable doubt possession of the cocaine by Mr. Lozoomi-Garmroodi and Mr. Knight-Allen at the same time. The trial was interrupted because of a medical emergency for one of the counsel and on consent of all parties the trial was adjourned. It was recommenced for three days starting March 3, 2021.

[3] The defence made a number of admissions at the commencement of the trial, namely, the identity of each accused, the white substance found in the car was cocaine, the quantity was 381 grams or 13.6 ounces, and this quantity would be possessed for the purpose of trafficking. Further, the defence also conceded the value of the 381 grams of cocaine would have been between $30,480.00 and $45,270.00 if sold by the gram and between $16,200.00 and $21,600.00 if sold by the ounce. It was admitted that the quantity of cocaine and its value proved possession for the purpose of trafficking.

Factual Circumstances

Introduction

[4] On August 19, 2019, D.C. Da Silva Cristopulo, a Toronto Police officer since 2007, was off-duty and driving in his personal car with his children in Ajax. He had been one of the drug officers involved in a drug project, Project Kraken, targeting a number of individuals from December 2018 until July 2019. D.C. Da Silva Cristopulo was involved in the “wire” room where the targeted individuals’ photographs were posted and officers listened to telephone conversations, observed text messages by phone, as well as social media pursuant to wiretap authorizations. The investigation involved a few gangs in the City of Toronto engaged in activities related to drug trafficking, robberies, homicide, trafficking in firearms that stretched from Toronto to Thunder Bay. Kaveh Lozoomi-Garmroodi was a named person on the Part 6 authorizations. Mr. Lozoomi-Garmroodi was involved in conversations with other individuals about trafficking in firearms and drugs, where he gave directions to others concerning these activities. The live wire taps commenced in March 2019 and continued until June 2019. There were reasonable and probable grounds to arrest Mr. Lozoomi-Garmroodi on charges of conspiracy to traffic in firearms and drugs. The take down occurred on June 27, 2019 but Mr. Lozoomi-Garmroodi was not arrested, as he could not be located. When D.C. Da Silva Cristopulo saw Mr. Lozoomi-Garmroodi in the passenger seat of the Nissan Altima on August 19, 2019, he recognized him and knew he was still wanted by Toronto Police Service (TPS).

[5] Those charges were still outstanding on August 19, 2019, when D.C. Da Silva Cristopulo observed Mr. Lozoomi-Garmroodi as a passenger in the Nissan Altima, license CHXM205. He did not recognize the driver of the Nissan, but he recognized Mr. Lozoomi-Garmroodi from Project Kraken. Upon recognizing Mr. Lozoomi-Garmroodi, D.C. Da Silva Cristopulo called 911 and spoke to an operator. He advised the operator he was an off-duty TPS officer and he had observed an individual who was wanted for trafficking in firearms and drug charges. D.C. Da Silva Cristopulo advised the 911 operator Mr. Lozoomi-Garmroodi was arrestable and requested DRPS to send uniform officers to where the Nissan was currently parked in a plaza, east of Salem Road and south of Kingston Road. He believed there was a warrant out for Kaveh Lozoomi-Garmroodi’s arrest for conspiracy to traffic in firearms and drugs, however, the 911 operator was unable to locate any warrant for those offences. The operator advised there was a warrant for Mr. Lozoomi-Garmroodi’s arrest on two counts of breaching a YCJA disposition. D.C. Da Silva Cristopulo testified he was aware this warrant was out of 14 Division in Toronto, but he reiterated to the operator that Mr. Lozoomi-Garmroodi was arrestable on the conspiracy to traffic in firearms and drugs.

[6] The Nissan left this plaza before the DRPS uniform officers arrived and D.C. Da Silva Cristopulo followed it to northbound Salem Road, providing information to the 911 operator of the vehicle’s location. It turned left onto Kerrison Street. He saw the marked cruisers take up a position behind the Nissan on Kerrison Street and ultimately the DRPS officers conducted a traffic stop. D.C. Da Silva Cristopulo believed there were reasonable and probable grounds to arrest Mr. Lozoomi-Garmroodi based on the investigation he was involved in by Toronto Police and he had advised the 911 operator about safety risks concerning Mr. Lozoomi-Garmroodi and his history with firearms.

Evidence of P.C. Ramy Zaky

[7] P.C. Zaky was with P.C. Pantin in the same police cruiser as he was P.C. Pantin’s coach officer on August 19, 2019. P.C. Pantin was a recent recruit with DRPS. P.C. Zaky received an arrest call from dispatch in his general patrol area and he responded to the location indicated. Exhibit 1 is the “call card” summary of the information received from dispatch respecting this call. Dispatch advised the passenger in a gray Nissan Altima, CHXM205, was wanted by TPS for conspiracy to traffic in firearms and drugs. An off-duty TPS officer, driving his personal vehicle, recognized Faveh Lozoomi-Garmroodi and was following the Nissan. P.C. Zaky testified it was his intention to arrest Mr. Lozoomi-Garmroodi and detain anyone else inside the vehicle.

[8] P.C. Zaky positioned his police cruiser behind the Nissan and activated his emergency equipment and P.C. Anderson went in front of the Nissan to block it in. P.C. Zaky testified his police cruiser came to a rolling stop and he and his trainee officer, P.C. Pantin, both exited the cruiser and took up safe positions behind the Nissan. As the Nissan was being blocked in by the two police cruisers, P.C. Anderson advised over the air she had observed the passenger hunched over and appeared to be reaching down to his legs. The driver’s and passenger’s windows of the Nissan were rolled down. P.C. Zaky decided to conduct a high risk takedown.

[9] Both P.C. Zaky and P.C. Pantin decided to withdraw their firearms and effect a gunpoint arrest of the occupants of the Nissan. P.C. Zaky testified he was 70% sure he would take his firearm out to make the arrest when he first received the information that Mr. Lozoomi-Garmroodi was wanted for trafficking in firearms and drugs and the CPIC caution that he was armed and dangerous, but when he heard P.C. Anderson put her observation over the air, he became 100% sure he should perform a gunpoint takedown. He took up a position behind the engine block of his police cruiser and verbally ordered the passenger to put his hands out the window. He then ordered the passenger to get out of the car, put their hands in the air, get on his knees and then get on his stomach and put his hands behind his back, at which point he handcuffed the passenger.

[10] P.C. Zaky effected Mr. Lozoomi-Garmroodi’s arrest at 8:21 p.m. He arrested him for the outstanding YCJA warrants for breaches with TPS and for the offences of trafficking in firearms and drugs. He placed him into the back seat of his police cruiser. He advised Mr. Lozoomi-Garmroodi of his right to counsel and caution. He also advised him of the warrants for his arrest and what he was under arrest for. He walked Mr. Lozoomi-Garmroodi ten feet to place him in the cruiser. P.C. Zaky placed him into his cruiser before reading the right to counsel and caution because of safety concerns.

[11] At 8:30 p.m., P.C. Zaky was advised by P.C. Dever that cocaine had been located in the Nissan. P.C. Zaky went to the Nissan and observed a clear plastic bag with a white substance in an orange bag, which was by the passenger’s seat. He believed the white substance was cocaine. At 8:42 p.m., he returned to his police cruiser and re-arrested Mr. Lozoomi-Garmroodi with possession for the purpose of trafficking in cocaine and re-read him his right to counsel and caution.

[12] At 8:49 p.m., P.C. Zaky transported Mr. Lozoomi-Garmroodi to 19 Division, arriving at 8:59 p.m., where he was told to go to 17 Division. P.C. Zaky testified he did not have any dealings with Mr. Knight-Allen.

[13] In cross-examination P.C. Zaky testified he referred to the CAD system when he was at the station to obtain times. He pulled over the Nissan at 8:13 p.m. He activated his lights and siren when he made the traffic stop. He first received the dispatch call at 8:04 p.m. He did not open the attachments to the call[^1] as he was trying to get to the location of the Nissan to arrest Mr. Lozoomi-Garmroodi. He was unaware of who the owner of Nissan, CHXM205 was. P.C. Zaky testified this was a Priority 1 call, so he was trying to get to it as quickly and safely as he could. The dispatcher was talking to him and providing information. He was advised there were warrants for trafficking in firearms and drug with TPS. P.C. Zaky testified he was acting on behalf of TPS police officer who provided information. He did not know the details of what Mr. Lozoomi-Garmroodi was wanted for. He did not know if it was a system warrant.

[14] The traffic stop occurred at 8:12 or 8:13 p.m. Mr. Lozoomi-Garmroodi came out of the car and was co-operative. P.C. Zaky did not recall him having a cell phone in his hand, he found a cell phone when he searched him. He was taken into custody at 8:14 p.m. and at 8:21 p.m. P.C. Zaky advised him once he was in the back seat of the police cruiser his right to counsel and caution and why he was under arrest. After his arrest P.C. Zaky handcuffed him and did a searched incident to arrest and placed him into the back seat of his cruiser. He did a thorough search. P.C. Zaky denied checking his computer or CPIC to determine what he was arresting Mr. Lozoomi-Garmroodi for, as he already knew from information provided by dispatch.

[15] P.C. Zaky testified there absolutely were grounds to search the Nissan based on TPS outstanding warrant for drugs and trafficking in firearms and the information provided by P.C. Anderson that the passenger was reaching under the seat when vehicle was coming to a stop. He did not search the car, but the search would be for weapons, means of escape and officer safety. The search of the car was a search incident to the arrest of Mr. Lozoomi-Garmroodi. The police did not need to get a search warrant as based on the information the officers had it was a search incident to arrest.

[16] P.C. Zaky rejected the defence suggestion he arrested Mt. Lozoomi-Garmroodi for only the YCJA breach charges.

[17] P.C. Zaky was recalled on March 3, 2021, at request of Mr. Rieger. Mr. Lozoomi-Garmroodi made an utterance between 8:43 and 8:49 p.m., when P.C. Zaky was speaking to him about bail after arresting him for possession for the purpose of trafficking in cocaine, where he said there was no cocaine in the car when he was in it.

Evidence of D.C. Jimmy Da Silva Cristopulo

[18] Police office with Toronto Police Service since August 20, 2007. He was involved in Project Kraken in a plain clothes capacity. His involvement was in the wire room. This Project was investigating drug trafficking and firearms trafficking by a number of gangs in Toronto.

[19] On August 19, 2019, he saw Kaveh Lozoomi-Garmroodi in a Nissan motor vehicle, CHXM205 in the passenger seat and recognized him from involvement in this project. The Project ran from December 2018 to July 2019. He was aware of Mr. Lozoomi-Garmroodi prior to Project Kraken commencing. Mr. Lozoomi-Garmroodi was a named person and target of the Part 6 authorizations. Number conversations where he was involved were intercepted, both text messages, social media and actual conversation by phone. The investigation involved drug trafficking between Toronto and Thunder Bay. There was a firearms connotation and some of conversations Mr. Lozoomi-Garmroodi was involved in were concerning firearms. He did speak about trafficking in firearms. Mr. Lozoomi-Garmroodi gave direction to others to bring drugs to him. D.C. Da Silva Cristopulo was aware Mr. Lozoomi-Garmroodi was wanted for trafficking in firearms and drugs, as well as fail to comply with YCJA dispositions, warrants from 14 Division. He was to be arrested in June when the Project was ending but he could not be located. The charges were still outstanding as was the warrant from 14 Division.

[20] On August 19, 2019, walking in parking lot and observed Mr. Lozoomi-Garmroodi sitting in passenger seat of Nissan. D.C. Da Silva Cristopulo also recognized the plate from the Project as a car involved. He did not recognize the driver. In the wire room were photographs of each individual party named in wire authorization with birthdate. D.C. Da Silva Cristopulo could not arrest Mr. Lozoomi-Garmroodi because he was off duty and had his two children with him in his car. As a result he called 911. He believed Mr. Lozoomi-Garmroodi was arrestable. He provided 911 dispatch with address of where he was. He provided the first and last name and spelled them for the 911 operator. Just before uniform officers arrived the Nissan left the plaza. Nobody had entered or exited the vehicle. D.C. Da Silva Cristopulo followed. He later observed uniform officers. One of police cruisers went behind the Nissan and stopped it.

[21] D.C. Da Silva Cristopulo believed there were grounds to arrest Mr. Lozoomi-Garmroodi and he advised dispatch about safety risk involving firearms. He told 911 he was not going to stop the Nissan because of the safety concerns.

[22] In cross-examination D.C. Da Silva Cristopulo advised that the takedown was on June 27, 2019, but the investigation continued to July. It was his belief that Mr. Lozoomi-Garmroodi was still arrestable for offences arising out of the investigation. He knew Mr. Lozoomi-Garmroodi had not been arrested on those offences in August 2019. On the wires Mr. Lozoomi-Garmroodi was involved in discussions about cocaine, some using coded language. I believed he was wanted for charges involving conspiracy to traffic in firearms and drugs and I told 911 this.

[23] D.C. Da Silva was asked whether Mr. Lozoomi-Garmroodi was violent, and he said he believed Lozoomi was. D.C. Da Silva Cristopulo wanted the DRPS officers and the public to be safe.

Evidence of P.C. Dylan Dever

[24] In August 2019 he had been a uniform police officer with DRPS for 3 years. He was working in a uniformed capacity in a marked police cruiser. He received an arrest call/ An off duty TPS officer observed individual wanted for trafficking in drugs and firearms. He arrived at the scene of the traffic stop at 8:16 p.m. Two males were in custody. He assisted in the search incident to arrest of the passenger. A light blue iPhone and $100 cash seized.

[25] This individual was wanted for conspiracy to trafficking in drugs and firearms. P.C. Dever believed there might be weapons or drugs in the vehicle. Also, one of the officers responding had indicated that she observed the passenger leaning forward as if hiding or grabbing something. P.C. Dever went to the Nissan to search the vehicle incident to arrest, for weapons, other evidence or means of escape based on the information of the passenger leaning down and the charges the passenger was wanted for of conspiracy to traffic in firearms and drugs. The passenger door was open when he got there. As soon as P.C. Dever entered the vehicle he observed a smell of marihuana. He saw two small roaches of burnt marihuana. He suspected there might be other drugs and knew P.C. Anderson had observed the passenger leaning down as if they were hiding something, so he searched vehicle incident to arrest. He believed based on all of the information he had that he could search the whole vehicle, including the trunk, incident to arrest.

[26] He was just outside the passenger door when he made these observations. He leaned into the passenger side and observed a plastic panel just underneath the centre console was ajar, about an inch and not snug up against the side of the center console. This was to the left of where the passenger was sitting. The panel was about a foot high and a foot and a half in width. If someone was sitting in the passenger seat this thin piece of plastic would be beside their left foot. This was on the side of the center console directly below the gear shifter. The panel looked as it had been pried open. It did not look like the panel was securely attached. He was able to see an orange coloured bag through this opening as soon as he leaned into the passenger side of the vehicle, he saw the orange bag where the panel was ajar. He did not have to touch the panel to see the orange bag the was behind it. P.C. Dever testified the passenger would have to lean forward and reach with his hand to be able to reach this plastic panel. He pulled the panel out and discovered an orange plastic Nike bag, weighing about a pound. It did not require any force to lift the panel out. This panel was something loose in the vehicle that P.C. Dever had never seen before. Inside the orange bag was a clear plastic bag with white powder he believed was cocaine. When he weighed the clear plastic bag and powder at the police station it weighed 381 grams.

[27] P.C. Dever advised P.C. Zaky what he had discovered so P.C. Zaky could advise the person he had in custody that he was now under arrest for possession for the purpose of trafficking. P.C. Dever went back to the Nissan to continue searching the vehicle. He found a black Kia car fob in the compartment when orange Nike bag was located. The compartment area was ¾ foot by ½ foot empty space. Three other cell phones were located, 2 were damaged and were found in the front passenger glove box. The third cell phone was plugged into a USB port and was sitting inside a cup holder in the center console. He seized all of the phones and he brought all of the property back to the police station.

Evidence of P.C. Dion Pantin

[28] P.C. Pantin had been a police officer for 9 months and was working with P.C. Zaky, who was one of his coach officers. This was his first time testifying in a courtroom.

[29] On August 19, 2019, he was working in a uniform capacity and driving in a marking cruiser with P.C. Zaky. An arrest call came over the radio. An off duty TPS officer had recognized a wanted individual for trafficking in firearms and drugs. This individual was the passenger in a gray Nissan Altima, CHMX205. There was a second male person in the vehicle who was the driver. In cross-examination he testified he did not recall hearing anything about a warrant for breach of YCJA disposition. There was no discussion about drawing our guns. He was to operate as P.C. Zaky’s backup and to keep an eye on both individuals. They did a vehicle traffic stop after locating the vehicle on Salem in Ajax.

[30] Prior to the traffic stop heard information that passenger had access to firearms and was considered armed and dangerous.

[31] P.C. Anderson was at the scene and she was at the back of the Nissan on the driver’s side. She indicated over the air just as P.C. Zaky was initiating the traffic stop that she observed the passenger reaching under the seat. As a result of this information P.C. Pantin withdrew his firearm. P.C. Pantin saw P.C. Zaky do the same. P.C. Zaky ordered the passenger out of the vehicle. P.C. Zaky ultimately handcuffed the passenger on the ground and took custody of him,.

[32] P.C. Pantin ordered the driver to put his hands through the open driver’s window. He advised the driver the police were making a gun point arrest and for him to follow the police instructions. The driver opened the driver’s door from outside, came out and was instructed to walk backwards towards officers with hands in the air. As the driver got out he advised P.C. Pantin he did not have his driver’s license with him. P.C. Anderson was also behind the driver’s side of the Nissan assisting P.C. Pantin. The driver was handcuffed and put into another police cruiser that had arrived on scene. The driver was being detained for investigation, as they did not know who he was. The driver verbally identified himself and provided a date of birth.

[33] P.C. Pantin testified he wanted to keep handcuffs on this person until he determined who he was. The vehicle still had to be searched given information officers had been provided by dispatch. At some point P.C. Pantin read the driver his right to counsel. He testified he did not intend to arrest him at that point. He went to the vehicle to see if a gun had been found.

[34] P.C. Pantin detained Mr. Knight-Allen at 20:21. He put him into the back of P.C. Salesman’s police cruiser three minutes later at 20:24. Mr. Knight-Allen told the officer again that he did not have his driver’s license and asked P.C. Pantin why he was being detained and he advised Mr. Knight-Allen was being detained because they were focusing on the passenger. Once Mr. Knight-Allen was cleared he would be released. At 20:30 P.C. Pantin noted he advised Mr. Knight-Allen of right to counsel and caution. Mr. Knight-Allen said he understood and did not want to speak to a lawyer. He has no explanation for why he did not read the right to counsel at 20:24 when he placed Mr. Knight-Allen into the rear of the cruiser.

[35] P.C. Pantin went to the Nissan and looked inside the vehicle as he wanted to see if a gun was located. P.C. Pantin never went inside the Nissan or touched the Nissan. He never looked under the front passenger seat. P.C. Dever was already searching the vehicle and was inside the vehicle in the front seat area. P.C. Dever was kneeling on the passenger side. P.C. Pantin did not know what the time was when he got back to the Nissan but P.C. Dever came out of the Nissan about 10-20 seconds after P.C. Pantin got there. P.C. Pantin did not indicate the time when P.C. Dever advised he had found cocaine inside the Nissan and he did not testify that he observed P.C. Dever locate the orange Nike bag containing a clear plastic zip lock bag with cocaine.

[36] Sometime after the cocaine was discovered in the Nissan by P.C. Dever, he told P.C. Pantin of his discovery. At 20:36 P.C. Pantin noted that he advised Mr. Knight-Allen that drugs were found in the Nissan and he was arresting Mr. Knight-Allen for possession for the purpose of trafficking. At 20:37 he advised Mr. Knight-Allen again of his right to counsel and cautioned him again. Mr. Knight-Allen said he did not have a lawyer and P.C. Pantin reminded him that he could call duty counsel. Mr. Knight-Allen said he wanted to call duty counsel. Mr. Knight-Allen was taken to the police station by P.C. Salesman and P.C. Pantin went with P.C. Zaky and Mr. Lozoomi-Garmroodi was in their cruiser under arrest.

[37] In cross-examination by Mr. Kodsy, P.C. Pantin testified that Mr. Knight-Allen was not asked to get out of the Nissan at the same time as the passenger was directed to get out. P.C. Pantin testified he did not request Mr. Knight-Allen to get out until Mr. Lozoomi-Garmroodi was lying on the ground and handcuffed. Once Mr. Knight-Allen was out of the car P.C. Pantin testified he handcuffed him because of the information about a firearm, which raised officer safety concerns.

Evidence of P.C. Latoya Anderson

[38] Uniformed officer with DRPS for four and a half years. She was alone in a marked police cruiser. She received a dispatch at 8:04 p.m. for a arrest call. She received information that an off duty TPS officer observed wanted individual who was arrestable for trafficking in firearms and drugs in a Nissan Altima, CHXM205. He identified the passenger as Kaveh Lozoomi-Garmroodi. She responded and drove to location broadcast over dispatch. The off duty TPS officer was following the Nissan and dispatch was providing updates as to the Nissan’s location. She observed the Nissan going northbound on Salem Road and took up a position some distance behind it. P.C. Zaky and P.C. Pantin were in a police cruiser also responding. P.C. Zaky initiated the traffic stop and P.C. Anderson sped up and ultimately drove past the Nissan and pulled in front of it to box it in. She had a clear view of the occupants of the Nissan in her rear view mirror. When the traffic stop was initiated both cruisers activated their emergency equipment and stopped the Nissan. It was suggested to P.C. Anderson that she stopped her vehicle abruptly in front of the Nissan to cause it to stop, however, she testified she did not know how fast she was driving. P.C. Anderson observed the passenger reach down so that he was hunched over. She originally could see the passenger’s upper torso and head but when he was hunched over all she could see was the top of his head. She could not see what the passenger was reaching for, but she broadcast her observation that the passenger was reaching under the seat. On radio she said, “Be careful passenger reached under his seat.” She testified this was what she said but she did not know what the passenger was doing other than reaching down. She could not see what the passenger was doing as it was below the dash. He was hunched over for 5 seconds.

[39] P.C. Anderson testified she drew her firearm given the information provided during the arrest call, the charges passenger was arrestable for, the fact he was considered armed and dangerous and her observation of the passenger reaching down and being hunched over out of sight as the vehicles were stopping. She went to the driver’s side of Nissan and ran to get behind it by P.C. Zaky’s cruiser. She was in the area that P.C. Pantin had taken a position. As she ran past the Nissan she saw the driver had his hands up and she could not see anything in the passenger’s hands.

[40] At 8:39 p.m. the Nissan was towed, and she left to go to 19 Division 9 minutes later. She was aware contraband was found in the car.

Evidence of Kaveh Lozoomi-Garmroodi

[41] Mr. Lozoomi-Garmroodi testified in his defence. His birthdate is March 16, 1997. Mr. Lozoomi-Garmroodi testified he had a youth court and adult criminal record. On December 17, 2014, he was found guilty as a youth of robbery, break and enter with intent (s. 348(1)) and possession of a weapon and received a deferred custody and supervision and 18 months probation. On February 25, 2015, in youth court he was found guilty of tampering with the serial number of a firearm (s. 108(1)(a) and unauthorized possession of firearm (s. 91(1)) and received 111 days custody with 56 days community supervision followed by 12 months probation after serving 191 days pre-sentence custody. On April 21, 2015, he was convicted of two counts of assault and received 12 months probation. On January 13, 2016, he was convicted of fail to comply with recognizance and dangerous operation of motor vehicle while street racing and received 1 day on the breach with 5 days pre-sentence custody and suspended sentence with 18 months probation with 30 days pre-sentence custody. On February 2, 2017, for numerous breach charges, identity fraud, obstruct police, possession of Schedule II substance he received a 60 day custodial sentence and $500.00 fine. On July 18, 2017, he was sentenced in youth court to probation for 18 months for an armed robbery. His most recent conviction in Toronto is from November 14, 2019 for conspiracy to traffic in percocets and conspiracy to traffic in cocaine where he received a 2 year penitentiary sentence.

[42] Mr. Lozoomi-Garmroodi testified he had been selling cocaine in Thunder Bay and he had decided to return to the GTA on August 19, 2019, to attend a friend’s birthday, which was on August 28, 2019, and he wanted to take a break from selling drugs. He had not slept the night before and left for the Thunder Bay airport at 5:30 a.m. He left Thunder Bay on a West Jet flight at 6:30 a.m. When he arrived in Toronto Pearson around 8:00 a.m., he took an airport taxi intending to go to his friend Omar’s house to pick up the Nissan Altima. Omar was the owner of the Nissan and he believed Omar’s last name was Mohammed. When he landed at the airport he testified he immediately called Omar as he wanted to come and pick up the Nissan. He planned to see Jevaughan Knight-Allen that day and he needed a vehicle to get around. He had previously driven the Nissan about a month and a half prior to that day.

[43] When he called Omar upon landing he found out another friend, Jahquar Stewart, had the car. Mr. Lozoomi-Garmroodi also knew Mr. Stewart by his nickname, “Bvlly.” He had been advised by Omar that the trunk was broken, there was no insurance on the vehicle and Omar was not driving it, so Mr. Lozoomi-Garmroodi said he was able to use it. No other details about Omar Mohamed were provided by Mr. Lozoomi-Garmroodi in terms of the nature of their friendship or relationship.

[44] Mr. Stewart was a friend of Mr. Lozoomi-Garmroodi for eight or nine years. He asked Mr. Stewart where he could pick up the Nissan and was told to go to the Husky Gas Station on Simcoe Street in Oshawa, off the 401 Highway. He met Mr. Stewart there and took possession of the Nissan. According to Mr. Lozoomi-Garmroodi, Mr. Stewart did not tell him there was cocaine in the Nissan. Mr. Lozoomi-Garmroodi assumed Mr. Stewart got the Nissan from Omar. Mr. Lozoomi-Garmroodi testified he did not see any loose panels in the passenger area on the side of the center console. No other details about Mr. Stewart were provided by Mr. Lozoomi-Garmroodi, other than the fact Mr. Stewart had been killed in a shooting on December 24, 2019, and that he was a rap artist. A photocopy of a newspaper story about Mr. Stewart was shown to Mr. Lozoomi-Garmroodi and entered as Exhibit 6.

[45] Mr. Lozoomi-Garmroodi drove the Nissan to Mr. Knight-Allen’s house on Westacott in Ajax. He had known Mr. Knight-Allen for 10 years. He had been to his house a lot of times. When he got there around 10:15 a.m., they went to Mr. Knight-Allen’s room and they were just hanging out. Mr. Lozoomi-Garmroodi said he fell asleep and did not wake up until 7 or 7:30 p.m. They had planned to go visit the gravesite of a mutual friend. He guessed Mr. Knight-Allen waited for him as he fell asleep. They decided to get some food and then go to the graveyard.

[46] Mr. Lozoomi-Garmroodi did not know Pickering or Ajax well so he let Jevaughan drive the Nissan to get the food. Mr. Lozoomi-Garmroodi sat in the front passenger seat. This was the first time he was in the passenger seat since he got the Nissan from Mr. Stewart. When they got to the Naan/Kebob restaurant in Ajax by Salem Road and Highway 2 Mr. Knight-Allen went to get the food and Mr. Lozoomi-Garmroodi stayed in the car. He was smoking a cigarette and listening to music. He testified he saw this man in a car with his son and they were looking at him. He put up the window and turned down the music. Jevaughan came back with the food and they both started eating. Then Jevaughan drove away and about a minute later he said there were police cars behind them. They were going to the graveyard on Church Street, which was close to Jevaughan’s house.

[47] Mr. Lozoomi-Garmroodi described how his phone was plugged into the aux port and they were listening to music from his phone through the car’s sound system. Jevaughan was pulling over and then they were boxed in by a police car in front that stopped suddenly. This caused his phone fall to the floor of the passenger side and he picked it up. He only bent down a couple of seconds. He then saw the lady police officer run past the Nissan with her gun drawn. Mr. Lozoomi-Garmroodi testified he put his hands in the air. He put his hand out of the window with his phone in his hand.

[48] An officer told Mr. Lozoomi-Garmroodi to open the car door from the outside, which he did, and the officer told him to put his phone in his back pocket, get on the ground and they handcuffed him. He asked why he was being arrested. The officer said they had a tip from Toronto Police to come get him. Mr. Lozoomi-Garmroodi testified when he asked what he was being arrested for the officer said they were going to search his name and would let him know. When Mr. Lozoomi-Garmroodi asked why they had their guns out he testified the officer said the system said he did not have a good record and he was known to carry firearms.

[49] Mr. Lozoomi-Garmroodi testified the officer asked him if there was cocaine in the car and he said no there wasn’t. He said he was confused as to why he got arrested.

[50] In cross-examination by Mr. Kodsy, Mr. Lozoomi-Garmroodi agreed he had never told Mr. Knight-Allen he was selling drugs. They had been friends back in elementary school. He agreed they had kept their friendship going through social media and their phones. Mr. Knight-Allen did not know his friends Omar or Mr. Stewart. Mr. Knight-Allen did not go into any other part of the Nissan other than the driver’s seat. Mr. Lozoomi-Garmroodi had smoked a marihuana cigarette before he arrived at Mr. Knight-Allen’s house. He never smoked marihuana in the presence of Mr. Knight-Allen. Mr. Knight-Allen had never been in the Nissan before.

[51] Mr. Lozoomi-Garmroodi was shown a series of photographs of a stock Nissan Altima, which he agreed were the same as the Nissan Altima he had picked up and driven to Mr. Knight-Allen’s house. The only difference was the one they were in had tinted windows, the rear lights, and there was no spoiler.. When he looked at the third photo he testified this was exactly how and where he had his cell phone plugged in to listen to music.

[52] In cross-examination by the Crown he confirmed that Mr. Knight-Allen knew nothing about his drug dealing. Mr. Knight-Allen knew Mr. Lozoomi-Garmroodi had been arrested before but did not know for what offences. Mr. Lozoomi-Garmroodi explanation for this was the fact Mr. Knight-Allen had a job, so they did not lead the same life and they lived in different areas, Mr. Lozoomi-Garmroodi lived in Don Mills and Mr. Knight-Allen lived in Ajax. He had indicated to Mr. Kodsy that they had known each other in elementary school but had re-connected through social media and by phone.

[53] Mr. Lozoomi-Garmroodi admitted he was selling cocaine in Thunder Bay. He testified he sold drugs in Thunder Bay because when he was living in Sudbury someone took him out there. He initially refused to identify the person who took him to Thunder Bay but finally said it was a friend of his named Jessie. He did not recall the last name as he met him in Sudbury a couple of years before. He admitted he did not know the last name but even if he did he would not provide it to the Crown.

[54] Mr. Lozoomi-Garmroodi testified Jessie introduced him to his uncle, Robert, but he did not recall his last name. He lived in a shelter in Thunder Bay. He did not know where he was currently living because they lost contact when he was first in Thunder Bay in 2017 or 2018. The Crown who was supplying him with cocaine in Thunder Bay and he said, “People around me.” He would not identify anyone as he did not want to get them in trouble. He refused to say who sold him drugs to sell. Mr. Lozoomi-Garmroodi indicated he would usually go up to Thunder Bay with 4 or 5 ounces of cocaine. He would sell whatever people like. He had been selling cocaine for two or three years in Thunder Bay.

[55] He did not call Mr. Knight-Allen until he landed. He told Mr. Knight-Allen he was going to drop by, and they would go to grave of their friend Aidan. He did not tell Mr. Knight-Allen he had just come in from Thunder Bay.

[56] On his way to go to Mr. Knight-Allen’s house Mr. Lozoomi-Garmroodi rolled a marihuana joint and smoked it. He said he did not get to finish it because the drive was short, so he left it in the ashtray of the car (according to P.C. Dever there were two roaches in the ashtray). Mr. Lozoomi-Garmroodi testified when he was sitting in the passenger seat he was in the Nissan for a very short period of time. He had no reason to look down at the center console, he just plugged his phone into the auxiliary port to play music. He agreed he was aware of drug dealers hiding drugs in compartments in a car. He agreed drug dealers are cautious. This is why he was not going to be driving around with drugs when he doesn’t have a G2 and his car smells like weed.

[57] When Mr. Lozoomi-Garmroodi was questioned about whether he was careful with the drugs he sold and if they were important to him, he indicated he really didn’t care about the drugs. He agreed he hides them so he does not get caught but he does not care if someone wanted to steal the drugs he has on him because they would only get an ounce or two. When he was asked about what he did with what he purchases to sell he said he just puts it in his house. He testified he often just left it in a bag on his bed in the house.

[58] Mr. Lozoomi-Garmroodi testified when the police car pulled in front of the Nissan and stopped, his cell phone fell from his lap to the floor and he bent over to pick it up. He said he was bent over for three seconds. He maintained he was a big guy and his leg covered the whole side of the center console and he did not see the panel ajar with orange behind it. He didn’t really see anything; all he saw was the floor. He questioned whether the police had dash cams in their cars because he put his hand out of the passenger window and he had his phone in his hand. He made a point of saying the only orange thing he saw was the auxiliary cord for his phone that was plugged into the Nissan dashboard auxiliary port to play music. The Crown provided him with Exhibit 7C (third stock photograph of a Nissan Altima) and Mr. Lozoomi-Garmroodi said this was exactly where his phone was plugged in. He agreed the panel where the cocaine was found would be four inches below this auxiliary port. He did not see the panel was open an inch or that there was something orange behind it.

[59] He agreed he is a drug dealer. He maintained he was confused by the police stopping the Nissan and his being arrested at gunpoint. He testified the officer (P.C. Zaky) told him he was probably going to be released by Toronto Police because the charge was only in respect of a breach. It was Mr. Lozoomi-Garmroodi’s evidence he did not know who the cocaine hidden in the Nissan belonged to. He never tried to find out because he was in jail since his arrest. He did not want to talk on the phone because his last case involved his being wiretapped. He knew 381 grams of cocaine was worth a lot of money.

Evidence of Jevaughan Knight-Allen

[60] He testified he did not know there was cocaine in the car. He did not know an orange bag was in the car and he had not seen any cocaine. He drove the Nissan to the Maimana Naan restaurant at Salem and Highway 2 in Ajax, as he knew the area and Mr. Lozoomi-Garmroodi was tired and he had just woken up. He would not have driven the Nissan if he had known there was cocaine hidden in it.

[61] Mr. Lozoomi-Garmroodi was coming over and they were planning to go to Pine Ridge Memorial Gardens, on Taunton Road and Church Street in Ajax, which is very close to his house, to visit the grave site of their friend, Aidan Bird, who had passed. After they visited the grave Mr. Knight-Allen testified he was to be dropped off at his house. They were on their way to the grave site when the police pulled them over on Kerrison Avenue. When the police signaled for him to pull over he did so immediately. Mr. Knight-Allen testified he was not involved in the business of selling drugs.

[62] He had never been in this Nissan before this occasion. He did not know who owned the car or where Mr. Lozoomi-Garmroodi got the car. He did not know anyone called Omar or he did not know Mr. Stewart.

[63] In cross-examination he said the only time he was in car was to pick up food and then driving to grave site. He was never in the passenger side of the car. He did not see this panel that was ajar. He never saw Mr. Lozoomi-Garmroodi with an orange bag.

[64] On the way to the kabob place Mr. Lozoomi-Garmroodi had his phone out. Mr. Knight-Allen was not paying attention to the phone. He was looking at the police officers who were stopping him and then getting out of their police cruisers with their guns drawn. He was not looking at Mr. Lozoomi-Garmroodi when he pulled the Nissan over. He did not see Mr. Lozoomi-Garmroodi duck down or what he did if he ducked down. Mr. Knight-Allen testified he never saw Mr. Lozoomi-Garmroodi with the Nissan that day and he never saw Mr. Lozoomi-Garmroodi hide anything by his feet.

[65] Mr. Knight-Allen said he did not know the details of why Mr. Lozoomi-Garmroodi was arrested for. He knew he had been charged with offences before but did not know what the convictions were for. He only heard Mr. Lozoomi-Garmroodi’s criminal record in court. He did not know if Mr. Lozoomi-Garmroodi had been to jail before. He would assume now that Mr. Lozoomi-Garmroodi is a criminal.

[66] Mr. Knight-Allen does not have a criminal record. He has known Mr. Lozoomi-Garmroodi for 10 years. He was two years older and when Mr. Lozoomi-Garmroodi was in Grade 7, he was in Grade 9. They lost touch and re-connected about three years ago. Mr. Lozoomi-Garmroodi was the same age as Mr. Knight-Allen’s brother. They connected through social media: Facebook. Mr. Knight-Allen had a job working at a car detailing business.

[67] He called that morning to say he was going to drop by Mr. Knight-Allen’s house. He sent a message and showed up 20 minutes or so later. They were chilling in Mr. Knight-Allen’s bedroom. Mr. Lozoomi-Garmroodi fell asleep. They had talked about going to their friend’s grave. Mr. Knight-Allen did not ask why he was so tired. He did not know Mr. Lozoomi-Garmroodi had just flown in from Thunder Bay, he didn’t know he was there or that he was selling drugs. They were playing video games and Mr. Lozoomi-Garmroodi fell asleep and was asleep for 5 or 6 hours. When he work up he was hungry and said he would pay for dinner. Mr. Knight-Allen did not bring his wallet because he had no money.

[68] Mr. Knight-Allen did not own a car, his mom had one. He drove the Nissan because he knew the area and where the restaurant was. Mr. Lozoomi-Garmroodi did not tell him anything about the car. He did not know the car was not insured. There were clothes in the car but he was not sure what they were. Mr. Knight-Allen testified he had no thoughts about the ownership of the car because he thought it was Mr. Lozoomi-Garmroodi’s. He did not know whose cocaine was found in the Nissan. He just knew it did not belong to him. He did not know there was cocaine hidden in the car. He had np reason to look into the passenger area of the Nissan.

[69] He did not know why the police were stopping the car. He did not believe he had done anything wrong. He asked the officer dealing with him what this was all for and all he said was he was being detained.

Charter Application

Was the arrest of Mr. Lozoomi-Garmroodi lawful and were the searches conducted incident to his arrest, of his person and the Nissan Altima, lawful? Further, was the investigative detention of Mr. Knight-Allen lawful?

[70] At the conclusion of the Crown’s case I inquired of defence counsel whether they would be calling any evidence respecting the Charter application that had been brought. I was advised by both counsel that they were abandoning their Charter applications. I provided brief reasons at that time as to why I would have found the police had a basis for searching Mr. Lozoomi-Garmroodi incident to his arrest, as well as searching the Nissan motor vehicle incident to his arrest having regard to the totality of the surrounding circumstances and the information provided to the police by dispatch respecting Mr. Lozoomi-Garmroodi. What follows are my more detailed reasons for why I would have dismissed the defence Charter applications.

[71] The police conducted searches of Mr. Lozoomi-Garmroodi’s person and the Nissan Altima he was a passenger in. The searches were characterized by P.C. Zaky as occurring incident to Mr. Lozoomi-Garmroodi’s arrest on charges from Toronto police of trafficking in firearms and drugs that he was wanted on, as well as the observations of P.C. Anderson where she saw Mr. Lozoomi-Garmroodi lean forward to reach under the passenger seat where she could only see the top of his head. The officers effecting the arrest also had information that Mr. Lozoomi-Garmroodi had access to firearms and was known to be armed and dangerous.

[72] After Mr. Lozoomi-Garmroodi was arrested by P.C. Zaky, a search of his person incident to his arrest for officer safety reasons was conducted by P.C. Zaky before he was placed into the rear of P.C. Zaky’s police cruiser. P.C. Dever conducted a search of the motor vehicle Mr. Lozoomi-Garmroodi was a passenger in, a Nissan Altima, license CHXM 205, as a search incident to Mr. Lozoomi-Garmroodi’s arrest looking for evidence and firearms. He grounded his search of the Nissan on the information received from the Toronto Police officer, D.C. Da Silva Cristopulo, concerning the drug and firearms charges Mr. Lozoomi-Garmroodi was wanted by Toronto police for. He also pointed to P.C. Anderson advising “over the air” the DRPS officers involved in the arrest that she observed the passenger, Mr. Lozoomi-Garmroodi, reach under his seat. In addition, P.C. Dever testified he searched the Nissan for officer safety in relation to this information, as well as information provided by dispatch that Mr. Lozoomi-Garmroodi had a previous history of involvement with firearms and there was a caution on CPIC that he was armed and dangerous..

[73] Section 8 of the Charter guarantees the right of every person to be secure against unreasonable search or seizure. It serves to protect the privacy of individuals from the intrusive conduct of the state. Section 8 is engaged when agents of the state intrude upon a reasonable expectation of privacy, R. v. Evans.[^2]

Issue of standing to bring s. 8 Charter application

[74] Mr. Knight-Allen and Mr. Lozoomi-Garmroodi were not the registered owners of the Nissan Altima. It is unknown on the evidence what relationship existed between the owner of the vehicle and the two accused. In R. v. Belnavis[^3] the Supreme Court held the reasonable expectation of privacy for someone in a car is somewhat reduced when compared with a home or office. As the driver of the Nissan Altima Mr. Knight-Allen would likely have a reasonable expectation of privacy pursuant to Belnavis,[^4] as he has control over the car given his possession of the keys. It is more difficult to determine whether a passenger, such as Mr. Lozoomi-Garmroodi, does and the majority in Belnavis, following R. v. Edwards,[^5] held whether a passenger has a reasonable expectation of privacy in a vehicle will depend on the totality of the circumstances.

[75] The Supreme Court of Canada recently[^6] addressed the issue of standing in a s. 8 Charter application in respect of text messages sent and stored by a service provider, where the accused led no evidence that he either authored or sent the texts messages. The majority held that the accused could rely on the Crown’s theory that he was the author of the texts messages to gain standing and argue he had a subjective and objective expectation of privacy in the subject matter of the texts messages. The Charter application failed because the police had obtained a production order to compel the service provider to provide the historical text messages.

[76] The Crown conceded at the commencement of the trial that both Mr. Knight-Allen and Mr. Lozoomi-Garmroodi have standing to allege a breach of their reasonable expectation of privacy in respect of the motor vehicle they were both found in, having regard to the Crown’s theory that both of the accused were in possession of cocaine for the purpose of trafficking.

Was the search of the Nissan Altima an appropriate search incident to Mr. Lozoomi-Garmroodi’s arrest on charges of trafficking in firearms and drugs?

[77] Generally, warrantless searches are prima facie unreasonable under section 8. Searches incident to arrest, however, are an established exception to this general rule, see Cloutier v. Langlois;[^7] R. v. Caslake;[^8] and R. v. Golden.[^9]

[78] The common law recognizes a right on the part of the police to conduct searches of accused persons and their immediate surroundings incident to arrest, without warrants or reasonable and probable grounds. The right depends on the lawfulness of the arrest and the search must be truly incidental to the arrest. Further it must not be conducted in an abusive manner, R. v. Fearon;[^10] R. v. Caslake;[^11] and R. v. Mohamad.[^12]

[79] Any search conducted by police incident to arrest must be exercised in a manner consistent with Charter values. It must, therefore,

(a) be for a valid objective in pursuit of the ends of justice;

(b) not be conducted for purposes unrelated to the proper administration of justice, such as to intimidate, ridicule or pressure an accused person; and,

(c) not be conducted in an abusive manner.

See Cloutier and Langlois.[^13]

[80] Where there is a warrantless search of an individual incident to his arrest or a search of a motor vehicle the individual has been driving or was a passenger in, incident to arrest, the Crown initially bears the onus to demonstrate the search is reasonable and lawful (see R. v. Caslake;[^14] R. v. Valentine;[^15] R. v. Aviles;[^16] and R. v. Santana[^17]). Once the Crown demonstrates the search incident to arrest was lawful the onus shifts to the accused.

[81] In R. v. Santana,[^18] Justice Doherty held that from Caslake and cases that have applied Caslake, a court, in deciding whether a particular search was a lawful incident to arrest, must determine:

• the purpose for which the officer conducted the search;

• whether that purpose was a valid law enforcement purpose connected to the arrest; and

• whether the purpose identified for the search was objectively reasonable in the circumstances.

[82] Further, in R. v. Santana,[^19] the Court of Appeal held:

The scope of the power to search as an incident to an arrest is fact-specific: R. v. Fearon, at para. 13…. Two points should be stressed. First, the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search. After-the-fact justifications that did not actually cause the police to conduct the search or seizure will not do. Second, the police purpose must be related to the specific reason for the arrest.

[83] It is my view that the DRPS police officers had reasonable grounds to arrest Kaveh Lozoomi-Garmroodi based on the information provided by D.C. Da Silva Christopulo, an off-duty Toronto Police officer that Mr. Lozoomi-Garmroodi was wanted in connection with charges of conspiracy to trafficking in firearms and drugs. D.C. Da Silva Christopulo advised 911 in Durham he was following a Nissan Altima, license CHXM205, in which Kaveh Lozoomi was a passenger. This individual was wanted and arrestable by Toronto Police on charges of conspiracy and trafficking in firearms and drugs. He provided descriptions of the driver and Mr. Lozoomi. He also provided the location where the car was parked and when it started to drive away he provided information as to where it was going.

[84] D.C. Da Silva Christopulo advised 911 he could not affect the arrest because he was in his personal car with his children, however, he was able to follow the Nissan and provide details of its location until DRPS uniform officers arrived. The DRPS dispatcher also advised the officers responding to the priority 1 arrest call that the 6th CPIC hit cautioned this individual, Kaveh Lozoomi, was armed and dangerous. D.C. Da Silva Christopulo also advised the male was large built and had a history of firearms.

[85] In addition, the DRPS officers also had reasonable grounds to arrest Mr. Lozoomi-Garmroodi on the warrant relating to two charges of his failing to comply with a YCJA order.

[86] Mr. Lozoomi-Garmroodi was a passenger in the Nissan Altima being driven by Mr. Knight-Allen.

[87] The search of Mr. Lozoomi-Garmroodi’s person after his arrest was based on the common law power of search incident to arrest as decided in Cloutier v. Langlois.[^20] This case “held such a search is an exception to the ordinary requirements for a reasonable search in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest,” R. v. Caslake.[^21] In Cloutier and Langlois, the Court held the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others and the discovery of evidence which can be used at the arrestee’s trial.

[88] In R. v. Caslake,[^22] the Supreme Court referred to the decisions by Doherty J. in the Ontario Court of Appeal of R. v. Lim (No. 2),[^23] and R. v. Belnavis,[^24] where he held “the authority to search incident to arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.” In that case searching the trunk of a car had no connection to an arrest for outstanding traffic fines (see Belnavis[^25]).

[89] However, in this case the officers were advised that Mr. Lozoomi-Garmroodi was observed and being followed by a off-duty TPS officer, who recognized Mr. Lozoomi-Garmroodi as an individual who was wanted by TPS and arrestable on charges of trafficking in firearms and drugs and conspiracy to commit those offences, as well, there was a warrant to arrest Mr. Lozoomi-Garmroodi for breach of a YCJA disposition. In addition, the officers effecting the traffic stop and the eventual arrest of Mr. Lozoomi-Garmroodi heard P.C. Anderson, who was part of the high risk takedown, advise that she had observed the passenger, who was Mr. Lozoomi-Garmroodi, lean or reach down under the passenger’s seat. Further, dispatch had advised this was a priority 1 arrest and CPIC indicated that Mr. Lozoomi-Garmroodi was known to be armed and dangerous.

[90] It is my view all this information would have justified the police to search this vehicle incident to arrest for a number of valid purposes directly connected to the underlying reason for the arrest, namely, for officer safety, public safety and to search for evidence of drugs and/or firearms.

[91] The defence has argued there was no warrant issued for Mr. Lozoomi-Garmroodi’s arrest on the charges pursuant to Project Kracken and that the only warrant the 911 operator was able to find was respecting breach of a YCJA disposition, which would not provide a reason to search the motor vehicle. It was the defence position that a search warrant should have been applied for in that circumstance. First, in my view the information provided by D.C. Da Silva Cristopulo would have been sufficient for the officers to arrest Mr. Lozoomi-Garmroodi for the offences of trafficking in firearms and drugs and that information together with the CPIC entry of Mr. Lozoomi-Garmroodi being armed and dangerous and P.C. Anderson’s observation would have permitted a search incident to arrest. The arresting DRPS officers could rely on the information provided by D.C. Da Silva Cristopulo to form reasonable and probable grounds for Mr. Lozoomi-Garmroodi’s arrest.

[92] Further, respecting Mr. Knight-Allen’s detention, in my view P.C. Pantin should have advised Mr. Knight-Allen of the specific details that resulted in his detention and why he was handcuffed and placed into the rear of a police cruiser. P.C. Pantin’s notes could have been in greater detail respecting what he specifically told Mr. Knight-Allen respecting the reason for his detention. P.C. Pantin should have advised Mr. Knight-Allen his right to counsel and cautioned him respecting his making any utterances to the police; however, it is my view this was a fast-moving, high risk to police officers’ and members of the public’s safety, which would, in my view, have justified the steps taken by P.C. Pantin in handcuffing and placing Mr. Knight-Allen in a police cruiser for officer safety until it was determined who Mr. Knight-Allen was and whether there was a firearm in the Nissan. I am also of the view that any breach of Mr. Knight-Allen’s ss. 10(a) and 10(b) Charter rights would not have resulted in the exclusion of the evidence found in the Nissan, namely, the cocaine or Mr. Knight-Allen’s utterance on two occasions that he did not have his driver’s license with him, which as will be seen I view as an exculpatory utterance pursuant to s. 24(2).

[93] As a result, all of the s. 8 Charter applications are dismissed.

Trial Issues

Law relating to R. v. W. (D.) and R. v. Villaroman

[94] As in any criminal case, Mr. Lozoomi-Garmroodi and Mr. Knight-Allen are presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.).[^26] Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[95] The onus remains on the Crown to prove Mr. Lozoomi-Garmroodi’s and Mr. Knight-Allen’s guilt beyond a reasonable doubt throughout their trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the accused if I accept their evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject their evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the accused beyond a reasonable doubt. In this case there are two accused, and both testified on their own behalf. I must consider each accused’s evidence to determine whether I accept the evidence given or if I do not accept the evidence given, whether it raises a reasonable doubt in respect of the evidence as a whole.

[96] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between the Crown’s evidence and the evidence of each of the accused. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.);[^27] and Avetsyan v. The Queen.[^28]

[97] As the Ontario Court of Appeal in R. v. Hull,[^29] noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[98] I must assess the evidence of the Crown and each of the accused in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[99] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting a accused’s evidence but still not being sufficiently satisfied by the other evidence to find that the case has been proven beyond a reasonable doubt. A state of uncertainty at a trial is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of a accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.[^30]

[100] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[101] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[102] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman,[^31] is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” (see R. v. Wu.[^32])

[103] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[104] These are the principles I must use in my assessment of the totality of the evidence led during Mr. Lozoomi-Garmroodi’s and Mr. Knight-Allen’s trial.

The Law of Possession

[105] There can be little dispute that if it is proven beyond a reasonable doubt that Mr. Lozoomi-Garmroodi and Mr. Knight-Allen had possession of the cocaine found in the Nissan, then the cocaine was possessed for the purpose of trafficking. Indeed, given the quantity and street value of the cocaine discovered, the only reasonable inference is that the cocaine was possessed for the purpose of trafficking. This was agreed in the two Agreed Statements of Fact, Exhibits 1 and 4.

[106] The Crown must prove beyond a reasonable doubt that one or both of the two accused knew of the cocaine’s existence and had a measure of control over it. "Possession" means possession within the meaning of s. 4(3) of the Criminal Code. "Possession" is defined in s. 4(3) of the Code as:

(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;

(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.

[107] In the recent decision of R. v. Lights,[^33] Watt J. dealt with the definition of personal and constructive possession:

45 When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See also R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.

46 When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

47 Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused:

i. has knowledge of the character of the thing;

ii. knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

iii. intends to have the thing in the place for the use or benefit of the accused or of another person.

Morelli, at para. 17.

[108] Justice Watt also indicated in R. v. Lights, at para 50, that when things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy, citing R. v. Watson,[^34] and R. v. Lincoln[^35].

[109] As noted in R. v. Pham,[^36] possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the accused knew of the presence of the controlled substances and he had a measure of control over the substances.

[110] As to the meaning of "control", the Court of Appeal in R. v. Savory,[^37] stated:

Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 1980 CanLII 74 (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff'd. (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.

[111] To establish knowledge, it is not essential that there be direct evidence of the accused's knowledge of the presence of the subject matter of the charge. Knowledge may, as with any other issue of fact in a criminal case, be established by circumstantial evidence. In R. v. McIntosh,[^38] Justice Hill, in the Ontario Superior Court dealt with the use of circumstantial evidence in possession cases:

In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, 1995 CanLII 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1.

[112] In this case, there is no direct evidence of either Mr. Lozoomi-Garmroodi’s or Mr. Knight-Allen’s knowledge of the 381 grams of cocaine found hidden behind a plastic panel located on the right side of the center console of the Nissan, directly beside the passenger seat. That is, no one testified that either of the accused put the cocaine in the Nissan where it was found, or that either of them directed it to be stored there or that either of them knew of its location. "[W]here the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt is the only reasonable conclusion on the totality of the evidence": R. v. Villaroman,[^39]; R. v. Biggs.[^40]

[113] In R. v. Anderson-Wilson,[^41] Justice Hill held:

Circumstantial evidence must be viewed as a whole and not each piece individually. R. v. Warkentin et al. (1976), 1976 CanLII 190 (SCC), 30 C.C.C. (2d) 1 (S.C.C.) at 20….The mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt. R. v. Griffin; R. v. Harris, (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at para. 34…. Circumstantial inferences are ones which can be reasonably and logically drawn from a fact or a group of facts established by the evidence'. R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont.C.A.) at 209.

Has the Crown proved beyond a reasonable doubt that Mr. Lozoomi-Garmroodi was in possession – had knowledge and control – of the 381 grams of cocaine discovered inside the gray Nissan?

[114] The Nissan Altima, Licence # CHXM205, is not owned by either Mr. Lozoomi-Garmroodi or Mr. Knight-Allen. A license check was conducted by dispatch and the registered owner was indicated on the police radio as being Omar Mohamed. The Crown led no evidence of this individual’s connection, if any, to either Mr. Lozoomi-Garmroodi or Mr. Knight-Allen. This type of evidence was not provided in the trial until Mr. Lozoomi-Garmroodi testified on his own behalf. He advised that the owner of the Nissan Altima was his friend Omar, whose last name he believed was Mohamed. Mr. Lozoomi-Garmroodi testified he had been selling cocaine in Thunder Bay for two to three years and he had decided to return to the GTA on August 19, 2019, after being in Thunder Bay for about three weeks. He testified he came back to the GTA to attend a friend’s birthday, which was on August 28, 2019. He also said he wanted to take a break from what he was doing in Thunder Bay. He left Thunder Bay on a West Jet flight at 6:30 a.m. on August 19, 2019. When he arrived at the Toronto Pearson Airport at approximately 8:00 a.m. and after getting off the plane and picking up his bag, he took an airport taxi intending to go to his friend Omar’s house to pick up the Nissan Altima. He testified he planned to see his friend, Jevaughan Knight-Allen that day and he needed a vehicle to get to his house.

[115] Mr. Lozoomi-Garmroodi testified the last time he had been in the Nissan was about a month and a half before he obtained it on August 19, 2019. He called Omar immediately after his flight landed to make arrangements to get the Nissan and Omar told him that another friend of his, Jahquar Stewart, had the Nissan Altima. Mr. Lozoomi-Garmroodi then made arrangements to pick up the Nissan by calling Mr. Stewart. He was able to make arrangements to pick up the Nissan from Mr. Stewart at a gas station within an hour of his arriving in Toronto from Thunder Bay. He testified he asked where he could pick up the Nissan and arrangements were made to deliver the vehicle to him at the Husky gas station in Oshawa just north of the Highway 401. In my view, this evidence leads irresistibly to a reasonable inference as to the control Mr. Lozoomi-Garmroodi exercised over this vehicle – just two phone calls and he is picking up this vehicle for his use by 9:30 a.m. There is also a reasonable inference in my view that this Nissan was a vehicle Mr. Lozoomi-Garmroodi had access to and used whenever he was in the GTA.

[116] Mr. Lozoomi-Garmroodi’s evidence about his last occasion of being in possession of this Nissan Altima, in my view, is also significant. D.C. Da Silva Cristopulo testified Project Kracken ended in the latter part of June 2019 and early July 2019, when a number of individuals were arrested during a police takedown. Mr. Lozoomi-Garmroodi could not be located at the time of the take-down. The Toronto Police viewed Mr. Lozoomi-Garmroodi as being arrestable on conspiracy charges involving the trafficking of firearms and drugs, as well as possession for the purpose of trafficking in firearms and drugs. Mr. Lozoomi-Garmroodi’s admission of previously being in possession and driving the Nissan just a month and a half before August 19, leads to a reasonable inference that he was in possession of the this vehicle around the time his co-conspirators were being arrested in late June or early July, 2019, and on his evidence he returned to Thunder Bay to sell cocaine after the last occasion he drove the Nissan and had control over it.

[117] Mr. Lozoomi-Garmroodi testified he did not know there was a large quantity of cocaine hidden in the Nissan Altima. However, on Mr. Lozoomi-Garmroodi’s testimony he had been working as a drug dealer selling cocaine in Thunder Bay for two to three years. He testified he was staying at an address in Thunder Bay when he was in that city, at 855 Simpson Street. He also testified that he lived at 50 Graydon Hall, which is in Toronto. He did not attend at this address after returning to the GTA from Thunder Bay; rather, he made arrangements to pick up the Nissan Altima to be able to get around.

[118] D.C. Da Silva Cristopulo testified that the Toronto Police Drug Squad began investigating a conspiracy to traffic in cocaine and firearms in December 2018, in which Mr. Lozoomi-Garmroodi was a named party in a wiretap authorization. Mr. Lozoomi-Garmroodi was involved in this investigation which involved the trafficking of drugs and firearms between Toronto and Thunder Bay. D.C. Da Silva Cristopulo testified there was evidence in the wiretaps that Mr. Lozoomi-Garmroodi gave direction to others to bring drugs to him. In my view there is an available reasonable inference on the totality of this evidence that Mr. Lozoomi-Garmroodi was returning to the GTA in August 2019, in respect of his drug trafficking activities in Thunder Bay and Toronto.

[119] Mr. Lozoomi-Garmroodi testified he went straight from the airport and picked up the Nissan Altima at the Husky Gas Station on Simcoe Street in Oshawa, which is just off the 401 Highway. He testified he then drove this Nissan to Mr. Knight-Allen’s home in Ajax. It was Mr. Lozoomi-Garmroodi’s evidence he did not see any loose panel in the car on the right side of the center console beside the passenger seat. He did not know how long Mr. Stewart had possession of the Nissan, and he assumed Mr. Stewart got it from Omar. Mr. Lozoomi-Garmroodi did not provide any details about his friend Omar Mohamed. He also did not provide any details about the nature of his friendship with Mr. Stewart, other than to say Mr. Stewart had passed away on December 24, 2019, and his counsel showed him a news article, Exhibit 6, describing Mr. Stewart as having been shot and killed on that date in Oshawa. No evidence was led by the defence to corroborate or confirm Mr. Lozoomi-Garmroodi’s evidence that he picked up the Nissan from Mr. Stewart. Of course there is no obligation for Mr. Lozoomi-Garmroodi to call any witness as he does not bear any onus of proof, however, the fact Mr. Stewart, a rap artist, was shot in a homicide leaves the implication the cocaine hidden behind the plastic panel belonged to him, but he unfortunately is dead, so this cannot be investigated or confirmed. I was not provided any information concerning Omar Mohamed.

[120] Mr. Lozoomi-Garmroodi was adamant he had no idea there was the large quantity of cocaine hidden in the Nissan and he had no idea whose it was. It is my view this does not accord with common sense or logic given the significant value of the cocaine found in the Nissan.[^42] No one involved in the trafficking of cocaine, where the quantity of cocaine is sizeable, with significant value, would leave their cocaine hidden in a car they were using in their business unless they knew and trusted the individual they gave their car to use. Further, in my view, in these circumstances there is a reasonable inference they would inform this trusted individual of the cocaine hidden in the car. There is a common sense reasonable inference available that if Jahquar Stewart or Omar Mohamed had placed the cocaine behind this plastic panel in the center console and was allowing Mr. Lozoomi-Garmroodi to take possession of the Nissan Altima they would advise Mr. Lozoomi-Garmroodi of the cocaine’s existence, where it was hidden, so that he would look after it and keep it safe. In R. v. Bains, 2015 ONCA 677, [2015] O.J. No. 5191, at para. 157, Justice Watt held:

As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, 1992 CanLII 913 (B.C.C.A.); and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[121] In R. v. McIntosh, [2003] O.J. No. 1267, at paras. 45-46, Justice Hill in dealing with a firearm, cash and a quantity of crack cocaine, which were hidden behind the glove box of a vehicle to keep the two items out of view, but readily accessible to anyone in the front seats for the purpose of sale transactions, drew the following reasonable inferences, which are equally applicable to the facts of this case:

45 The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 1971 CanLII 1411 (SCC), 2 C.C.C. (2d) 118 (B.C. C.A.) at 121 (aff'd. on appeal (1971), [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

46 The quantity of crack cocaine is clearly for the purpose of trafficking. The value of the illicit drug, thousands of dollars’ worth from retail sales, suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptacle concealing the asset.

[122] Mr. Lozoomi-Garmroodi’s insistence during his cross-examination that he was not concerned about someone stealing the 1 or 2 ounces of cocaine (worth between $1200-$1600 per ounce) that he had on his person when he was selling cocaine in Thunder Bay was completely unbelievable and disingenuous. Similarly, although he acknowledged drug dealers often hide their drugs in their cars or their houses, so the drugs will not get stolen, he testified he often left his supply of cocaine in a bag, on his bed, in his house, out in the open, because he was not concerned nor did he care that someone might steal it. In my view, this was an example of Mr. Lozoomi-Garmroodi being evasive by not being prepared to answer directly the questions being put to him by the Crown. Further, this is another example of Mr. Lozoomi-Garmroodi’s evidence being non-sensical and unbelievable. As I have indicated, the amount of cocaine hidden behind this plastic panel was significant as was its value ($16,200 to $21,600 if sold by the ounce or $30,480 to $45,270 if sold by the gram). On Mr. Lozoomi-Garmroodi’s evidence he only ever had 1-2 ounces of cocaine on his person at any time, which leads to the reasonable inference he either sold cocaine by multiple grams or an ounce. In my view there is an irresistible reasonable inference that Mr. Lozoomi-Garmroodi knew the cocaine was in the Nissan because whoever hid it behind the panel (either Omar or Mr. Stewart) told Mr. Lozoomi-Garmroodi it was there so he could ensure it was safe and not get stolen. A further reasonable inference is available that Mr. Lozoomi-Garmroodi knew the cocaine was hidden behind the plastic panel because either he put it there or it was placed there for him for his drug trafficking activities in Thunder Bay.

[123] Mr. Rieger submitted that Mr. Lozoomi-Garmroodi was candid in his evidence as he admitted he was trafficking in drugs in Thunder Bay and that he only lacked candor when the questions didn’t relate to the charges he was facing. In my view this submission completely mischaracterized Mr. Lozoomi-Garmroodi’s evidence and was a distinction without a difference, as his testimony was anything but candid. The nature of his involvement in the drug trade was extremely relevant to the issues to be determined in this trial. In my view, his evidence on this issue was deceptive and evasive. Mr. Lozoomi-Garmroodi refused to identify the person from Sudbury who initially took him to Thunder Bay to introduce him to a guy who could supply him with cocaine to sell there. He eventually said this person in Sudbury was a friend of his and his name was Jessie, but he then said he could not recall his friend Jessie’s last name, as he met him a couple of years before. When he was pressed further on this issue, he finally said even if he knew Jessie’s last name, he would not provide it.

[124] When the Crown asked who Jessie introduced him to in Thunder Bay he testified he thought it was Jessie’s uncle, whose name was Robert. When he was asked where the uncle lived, he said, in a shelter. He then said he did not know where Robert lived now as he lost contact with him while he was out there in Thunder Bay. This was the person he indicated supplied him with cocaine in Thunder Bay and he claimed he did not know where he lived and that he lost contact with him. He again refused to provide this individual’s full name. When Mr. Lozoomi-Garmroodi was then asked who sold him the drugs he was selling, he testified, “People around me.” Once again he refused to name anyone and continued to say, “People around me” sold him the drugs he sold. He testified he did not want to get anyone in trouble, and he asked, “What does it matter” as the drugs he had received were already sold. Mr. Lozoomi-Garmroodi was frequently evasive in his answers and often became combative and confrontational with the Crown, often answering questions by asking questions of the Crown, even after being advised he was the witness and he was required to answer the questions he was being asked. In my view his manner of answering questions adversely affected Mr. Lozoomi-Garmroodi’s credibility.

[125] There were a number of areas in Mr. Lozoomi-Garmroodi’s evidence where it is my view he lied, some of which I have just discussed. His evidence was at times completely inconsistent with other witness’ evidence, which I accept. The first area related to his version of what happened in the Nissan when the traffic stop occurred. Mr. Lozoomi-Garmroodi testified he had plugged his cell phone into the auxiliary port to listen to music. It was his evidence when P.C. Anderson pulled in front of the Nissan Altima and came to a stop, this action caused his cell phone to fall from his lap to the floor of the front passenger area. The implication in his evidence was that P.C. Anderson came to a sudden stop, which caused Mr. Knight-Allen to stop suddenly too. This resulted in him having to bend down to pick up his phone, which he testified explained why P.C. Anderson saw him bend over. He testified it took him about three seconds to pick his phone off the floor. He was not reaching under the passenger seat or reaching to where this plastic panel could be removed to reveal the orange Nike bag containing the clear plastic zip lock bag of cocaine. He further testified that he kept the cell phone in one of his hands after he picked it up and that he put both his hands out the open passenger window with one of them holding onto his phone. He then volunteered that this would be shown on the police cruiser’s dash cam if there was one, but there was no dash cam video presented in evidence.

[126] The first problem with this evidence is the fact that P.C. Dever found a cell phone in a cup holder in the center console of the Nissan when he searched the vehicle, which was still plugged into the auxiliary port on the instrument panel (similar to what can be seen in the stock photograph, Exhibit 7C). If Mr. Lozoomi-Garmroodi was telling the truth about the phone falling to the floor and his bending over to retrieve it and then keeping the phone in his hand, then P.C. Dever would only have found an auxiliary cord plugged into the auxiliary port on the instrument panel of the Nissan. P.C. Dever testified he found three cell phones inside the Nissan Altima, two cells phones were in the glove box and they were both broken, and one cell phone was plugged into the auxiliary port of the Nissan sitting in a cup holder in the center console. In my view there is an overwhelming reasonable inference this cell phone could not have fallen onto the floor of the front passenger seat from the cup holder it was found in. As I indicated above, I accept P.C. Dever’s evidence on this issue.

[127] Further, Mr. Lozoomi-Garmroodi testified the reason P.C. Anderson saw him bending over was because she stopped so suddenly in front of the Nissan and this caused his cell phone to fall onto the front passenger side floor at his feet. I do not accept this evidence given by Mr. Lozoomi-Garmroodi. I accept the evidence of P.C. Zaky, who testified he was the one that initiated the traffic stop and that he brought his police cruiser to a “rolling stop,” not a sudden stop and he was behind the Nissan Altima, which was behind P.C. Anderson’s cruiser. In cross-examination P.C. Zaky testified the Nissan was going slow, not even 20 km/hour when he gave the order to initiate the traffic stop. Based on the evidence relating to this issue, I find P.C. Anderson came to a reasonable stop with her emergency lights and siren initiated such that there was no possibility of the Nissan Altima crashing into the rear of her police cruiser if she had suddenly pulled in front of the Nissan and stopped abruptly as described by Mr. Lozoomi-Garmroodi. P.C. Anderson testified she did not know how fast she was going when the traffic stop was initiated by P.C. Zaky calling it on the radio. When she ran past the driver’s side of the Nissan to its rear she testified she saw the driver had his hands in the air and she did not see anything in the passenger’s hands. I accept her evidence on this because given what she described seeing over the radio she would have been concerned whether the passenger had anything in his hands.

[128] It was suggested to Mr. Knight-Allen by Mr. Rieger that Mr. Lozoomi-Garmroodi bent over during the traffic stop to pick up his phone and Mr. Knight-Allen testified he did not see that as he was focusing on the police vehicles and was not paying attention to what Mr. Lozoomi-Garmroodi was doing.

[129] Further, if Mr. Lozoomi-Garmroodi had his cell phone in his hand as he put both of his hands outside the passenger’s open window, it is my view this would have raised serious concerns to the officers who were executing a gun point takedown, given P.C. Anderson’s caution over the radio that she had seen the passenger reach under the seat and the information from the dispatch that there was information on CPIC that Mr. Lozoomi-Garmroodi was armed and dangerous. None of the officers effecting the passenger’s arrest mentioned his having anything in his hands. I do not accept Mr. Lozoomi-Garmroodi’s evidence that he had his cell phone, on which he had been playing music in his hand, as it was still in the cup holder in the center console. He had a different additional cell phone and it was on his person, according to the two officers who searched him incident to arrest.

[130] This plastic panel on the right side of the center console was readily available and accessible to Mr. Lozoomi-Garmroodi from the passenger seat. In my view this could be a reason Mr. Lozoomi-Garmroodi asked Mr. Knight-Allen to drive so Mr. Knight-Allen would not be sitting in the passenger seat close to this plastic panel. Further, by sitting in the passenger seat Mr. Lozoomi-Garmroodi was in a position to access the plastic panel and the cocaine hidden behind it.

[131] For all of these reasons it is my view there is a reasonable inference that the reason Mr. Lozoomi-Garmroodi bent over as the traffic stop was being initiated was because he was bending forward to be able to reach where this plastic panel was located to try and ensure it was closed and not partially open. P.C. Dever testified someone sitting in the passenger seat would have to lean forward, which would cause them to drop out of view, in order to reach or touch this plastic panel on the side of the center console. I accept P.C. Dever’s evidence as to the location of the plastic panel. P.C. Dever also testified that the plastic panel was only attached at the bottom right sides by some form of plastic, but the top left side had nothing holding it in place and was very loose. This was the side he testified was ajar by an inch, through which he was able to clearly see a portion of the orange bag.

[132] Further, Mr. Lozoomi-Garmroodi agreed with the Crown’s suggestion the location of this plastic panel on the side of the center console was only 4 inches from where he would have plugged in his cell phone into the auxiliary port looking at Exhibit 7C. He also testified the reason he did not see the plastic panel being ajar was because he is a large guy and his left leg completely blocked the right side of the center console, so he could not see any orange colour through the portion that was ajar. Mr. Lozoomi-Garmroodi’s concession is curious given his position that he did not know there was cocaine in the Nissan, as his answers in my view lead to a reasonable inference he was aware of the location of this plastic panel, which in the side of the center console. In fact, Mr. Lozoomi-Garmroodi volunteered at this point of his cross-examination that the only thing that was orange was his “aux cord” plugged into his phone and the auxiliary port. It would be beyond coincidence that Mr. Lozoomi-Garmroodi’s auxiliary cord was the same colour as the orange Nike bag hidden behind this plastic panel containing 381 grams of cocaine.

[133] Mr. Lozoomi-Garmroodi’s evidence that he was confused as to why he was arrested does not accord with common sense and does not have the ring of truth. He had been selling cocaine in Thunder Bay for 2-3 years on his evidence. There is evidence before me that he was a named target in a wiretap authorization in connection with the TPS investigation into conspiracy to traffic in firearms and drugs. Those other individuals who were involved with him in his drug trafficking activities had been arrested at the end of June 2019 or beginning of July 2019. In my view there is a reasonable inference he knew that Toronto Police had been involved in a major project, which had led to a number of the persons he had been involved with being arrested a month or two prior to August 19, 2019, for drug and firearms trafficking offences. I accept P.C. Zaky’s evidence that after handcuffing Mr. Lozoomi-Garmroodi he advised him he was being arrested on outstanding warrants from TPS respecting conspiracy to traffic in firearms and drugs. P.C. Dever, who arrived just after P.C. Zaky arrested Mr. Lozoomi-Garmroodi, testified he also told Mr. Lozoomi-Garmroodi that he was under arrest for firearms and drug trafficking offences. Mr. Lozoomi-Garmroodi’s evidence of not understanding why he was arrested and being confused is completely unbelievable and I do not accept it.

[134] Mr. Lozoomi-Garmroodi testified as he was waiting in the Nissan for Mr. Knight-Allen to get the food he saw this man in a car with his son and they were looking at him. In my view this is also somewhat curious and implies Mr. Lozoomi-Garmroodi was keeping a lookout and being cautious as to whether anyone might be watching him. Mr. Lozoomi-Garmroodi’s explanation for why he was visiting Mr. Knight-Allen to go to the gravesite of a mutual friend, Aiden, at the Pine Ridge Memorial Gardens Cemetery, which was close to Mr. Knight-Allen’s house, was also curious. No details were provided as to who Aidan was or what Mr. Lozoomi-Garmroodi’s or Mr. Knight-Allen’s relationship with Aidan was. He testified he arrived at Mr. Knight-Allen’s house at 10:15 a.m. and they hung out playing video games, during which Mr. Lozoomi-Garmroodi fell asleep until 7 or 7:30 p.m. When he awoke instead of immediately visiting the gravesite because of the time, they went in the opposite direction of the cemetery and purchased food some distance away from the cemetery. It was his evidence they were on their way to the cemetery when the Nissan was stopped by the police around 8:15 p.m., still at least 10 minutes from where the cemetery is located. Given the time of year he was visiting Mr. Knight-Allen it was getting dark, close to sunset and this explanation in my view does not accord with common sense.

[135] As I have indicated I do not accept Mr. Lozoomi-Garmroodi’s evidence in respect of his denials of having knowledge of the cocaine hidden behind the plastic panel on the right side of the center console in the Nissan Altima. Further, his evidence does not raise a reasonable doubt on this issue when I consider it in the context of the evidence as a whole.

[136] Based on the totality of the circumstances of this case and the evidence I do accept, I find there is only one reasonable inference available that Mr. Lozoomi-Garmroodi was in possession of the 381 grams of cocaine hidden behind the plastic panel on the right side of the center console. He knew about the existence of the cocaine either because he put it there (actual possession) or he was told about it being in that location and the owner trusted him to protect it (constructive or joint possession) or it was put there by Omar or Mr. Stewart for his use given his previous involvement using the Nissan and how quickly he was able to obtain possession of it. Further, Mr. Lozoomi-Garmroodi had control over the cocaine given his obtaining the Nissan to use as his method of transportation. His control over this vehicle is supported by the short period of time it took for it to be supplied to him and the fact he had used it just a short time before. I find this reasonable inference of guilt can be drawn from the circumstantial evidence presented in this case and that it is the only reasonable inference that such evidence permits. As a result, I find that the Crown has proven beyond a reasonable doubt that Mr. Lozoomi-Garmroodi was in possession of the 381 grams of cocaine and it was for the purpose of trafficking. Consequently, he will be found guilty of that charge.

Has the Crown proved beyond a reasonable doubt that Mr. Knight-Allen was in possession – had knowledge and control – of the 381 grams of cocaine discovered inside the gray Nissan?

[137] Mr. Knight-Allen had never been in this Nissan before August 19, 2019, and he testified he did not know Omar Mohamed or Mr. Jahquar Stewart. This evidence was not contradicted. Mr. Lozoomi-Garmroodi made arrangements with Omar Mohamed and Mr. Stewart to pick up the Nissan from Mr. Stewart at the Huskie Gas Station and then he drove over to Mr. Knight-Allen’s home on Westacott Crescent in Ajax, arriving there between 10:00 and 10:15 a.m. Mr. Lozoomi-Garmroodi and Mr. Knight-Allen both testified the arrangements to get together were made that morning as Mr. Lozoomi-Garmroodi was taking a taxi to pick up the Nissan. After he arrived at Mr. Knight-Allen’s house they were hanging out playing video games and Mr. Lozoomi-Garmroodi apparently fell asleep for 5 or 6 hours.

[138] Mr. Knight-Allen described losing touch with Mr. Lozoomi-Garmroodi as Mr. Knight-Allen was two years older and went to a different high school. They reconnected on social media about three years prior to the arrest. He had arranged on the morning of August 19, 2019, to go with Mr. Lozoomi-Garmroodi to the gravesite of a mutual friend from school, Aidan Bird, who was buried at the Pine Ridge Memorial Gardens Cemetery, which was close to Mr. Knight-Allen’s house.

[139] Mr. Knight-Allen worked at a car detailing business. He did not have a criminal record. Mr. Knight-Allen denied knowing that Mr. Lozoomi-Garmroodi was involved in drug trafficking. He knew Kaveh had been arrested before but did not know for what offences as he did not know the details. He testified he did not discuss this with Mr. Lozoomi-Garmroodi. He did not know Kaveh had just flown in from Thunder Bay. He did not know Mr. Lozoomi-Garmroodi was trafficking cocaine in Thunder Bay and no evidence was led to refute that claim. Mr. Knight-Allen testified he received a call that morning from Mr. Lozoomi-Garmroodi that he was going to come over to visit and he asked if Mr. Knight-Allen wanted to go to the gravesite of their friend, Aidan Bird. No details were provided as to who Aidan Bird was or why he and Mr. Lozoomi-Garmroodi would want to visit his gravesite.

[140] In my view the story about Mr. Lozoomi-Garmroodi calling Mr. Knight-Allen so they could get together to go to this mutual friend’s grave did not accord with common sense, particularly given the fact Mr. Lozoomi-Garmroodi fell asleep until 7:00 or 7:30 p.m. Also, August 19, 2019, is a Monday, which one might assume was a working day for Mr. Knight-Allen, although he was not asked this question. It also makes no sense to visit a gravesite in the evening, given the time Mr. Lozoomi-Garmroodi woke up and even less sense to get something to eat before going to the cemetery after the sun has gone down. This explanation for getting together and still planning to attend the cemetery did not accord with everyday human experience or common sense.

[141] The Crown, however, did not lead any evidence about Mr. Knight-Allen’s relationship with Mr. Lozoomi-Garmroodi. The police had seized a cell phone that was on Mr. Lozoomi-Garmroodi’s person during his arrest. Further, they seized a cell phone plugged into the auxiliary port of the Nissan Altima, which Mr. Lozoomi-Garmroodi testified was his phone. There was no evidence that a cell phone was seized from Mr. Knight-Allen. The Crown did not lead any evidence respecting cell phone texts or calls between Mr. Knight-Allen and Mr. Lozoomi-Garmroodi, which might have been relevant to demonstrating the nature of their relationship and perhaps why they were getting together. I do not even know if the police applied for a search warrant to search these two cell phones owned by Mr. Lozoomi-Garmroodi. There is a huge gap in the evidence relating to whether Mr. Knight-Allen was involved with Mr. Lozoomi-Garmroodi’s illegal activities.

[142] On the evidence led during the trial Mr. Knight-Allen was only in the Nissan for an extremely short time. He was first seen in the Nissan at the naan/kebob restaurant in Ajax, east of Salem Road and south of Kingston Road. He was in the driver’s seat. D.C. Da Silva Cristopulo did not know who the driver was. The driver was not an involved target in Project Kracken according to D.C. Da Silva Cristopulo. Mr. Knight-Allen left the Nissan and went into the restaurant and came out with food, which the two were eating, sitting in the car. Mr. Knight-Allen testified he did not have any money, but Mr. Lozoomi-Garmroodi said he would pay for dinner and provided money to Mr. Knight-Allen. No money was found on Mr. Knight-Allen when he was searched before he was placed into P.C. Salesman’s cruiser by P.C. Pantin. He was only observed in the driver’s seat from the parking lot of the restaurant until the vehicle was stopped on Kerrison Street by the police, probably not more that 1 or 2 kms. There were no observations of any interactions between anyone and either of the two occupants in the Nissan in the parking lot that would suggest drug trafficking.

[143] When Mr. Knight-Allen was signalled to pull over by the police he did so immediately and properly. His first comment to P.C. Pantin when he exited the Nissan at gunpoint was that he did not have his driver’s license on him. P.C. Pantin described him as being completely cooperative. Mr. Knight-Allen told P.C. Pantin again he did not have his driver’s license when he was put into the rear of P.C. Salesman’s cruiser. P.C. Pantin advised him he was being detained because the police were focussing on the passenger and he would be released once he was cleared. He advised Mr. Knight-Allen of his right to counsel and he told the officer he did not want to speak to a lawyer. Mr. Knight-Allen did not know whose car it was, and he testified he believed it belonged to Mr. Lozoomi-Garmroodi as Mr. Lozoomi-Garmroodi had the keys and had driven it to Mr. Knight-Allen’s house.

[144] In my view Mr. Knight-Allen’s comment to P.C. Pantin as he was directed to exit the Nissan and when he was being put into the police cruiser a second time that he did not have his driver’s license with him is significant and demonstrates he thought the police were pulling him over because of a traffic violation. It was suggested to Mr. Knight-Allen by Mr. Rieger that Mr. Lozoomi-Garmroodi had been using his phone to listen to music on the way to the restaurant and at the restaurant, to which he agreed. However, when Mr. Rieger suggested the cell phone fell to the passenger’s floor when the police stopped the Nissan and Mr. Lozoomi-Garmroodi had to bend down to pick it up, Mr. Knight-Allen testified he was not paying attention to Mr. Lozoomi-Garmroodi’s phone. If Mr. Lozoomi-Garmroodi had bent over to pick up his cell phone because it fell to the floor it is my view Mr. Knight-Allen would have observed that, but he did not.

[145] The Crown can only point to the fact Mr. Knight-Allen was driving the Nissan as circumstantial evidence he had knowledge and control over the cocaine found behind the plastic panel on the right side of the center console. This inference is not the only inference available in my view, given the short period of time Mr. Knight-Allen was in the Nissan, the fact it was not his vehicle and the absence of any evidence showing what the nature of his relationship was with Mr. Lozoomi-Garmroodi, other than they were friends from elementary school.

[146] Although Mr. Knight-Allen was the driver of the Nissan, the plastic panel was on the right side of the center console and would not have been visible to the person who was driving. It was not Mr. Knight-Allen’s vehicle. The Crown did not lead any evidence respecting any involvement by Mr. Knight-Allen in drug trafficking. He denied selling drugs or being aware Mr. Lozoomi-Garmroodi was trafficking in drugs. As I indicated above, a reason Mr. Lozoomi-Garmroodi asked Mr. Knight-Allen to drive the Nissan was so Mr. Knight-Allen would not be beside the cocaine sitting in the passenger seat. There is a reasonable inference Mr. Lozoomi-Garmroodi was ensuring that he protected the cocaine from discovery by someone who did not know of its existence.

[147] Although I have suspicions about Mr. Knight-Allen’s involvement with Mr. Lozoomi-Garmroodi and this Nissan and what they were doing prior to going to get food, primarily because I do not believe their explanation about going to the gravesite of their friend, there was not sufficient evidence led by the Crown in relation to Mr. Knight-Allen to satisfy me of his guilt beyond a reasonable doubt in relation to his knowledge or control of the cocaine.

[148] As a result, the charge facing Mr. Knight-Allen is dismissed.

Released: April 23, 2021.

Signed: Justice Peter C. West

[^1]: Tab 5 in Defence materials, marked as Exhibit A.

[^2]: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 11.

[^3]: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at paras. 19, 22.

[^4]: Ibid., at para 19.

[^5]: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

[^6]: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at paras. 15-55. See also R. v. Labelle, [2019[ O.J. No. 3461 (C.A.), at paras. 15, 23-32.

[^7]: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158.

[^8]: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 13, 18-25.

[^9]: R. v. Golden, . 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84.

[^10]: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 20.

[^11]: R. v. Caslake, supra, at para. 13.

[^12]: R. v. Mohamed, 2004 CanLII 9378 (ON CA), [2004] O.J. No. 279 (C.A.), at paras. 28-29.

[^13]: Cloutier and Langlois, supra, at paras. 49, 56 and 61-62.

[^14]: R. v. Caslake, supra, at para. 11.

[^15]: R. v. Valentine, 2014 ONCA 147, [2014] O.J. No. 876, at para. 43.

[^16]: R. v. Aviles, 2017 ONCA 629, at paras. 13-15.

[^17]: R. v. Santana, [2020] O.J. No. 2561, at para. 23).

[^18]: Ibid., at para. 26.

[^19]: Ibid., at para. 28.

[^20]: Cloutier and Langlois, supra.

[^21]: R. v. Caslake, at para. 13.

[^22]: Ibid., at paras. 18-25.

[^23]: R. v. Lim (No. 2), [1990] O.J. No. 3261.

[^24]:R. v. Belnavis, supra.

[^25]: R. v. Belnavis supra, at para. 49.

[^26]: R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

[^27]: Ibid., at p. 409, per Cory J.

[^28]: R. v. Avetsyan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[^29]: R. v. Hull, [2006] O.J. No 311 (C.A.), at para 5.

[^30]: R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.).

[^31]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.

[^32]: R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15.

[^33]: R. v. Lights, 2020 ONCA 128, [2020] O.J. No. 677, at paras. 45-47.

[^34]: R. v. Watson, 2011 ONCA 437, at para. 13.

[^35]: R. v. Lincoln, 2012 ONCA 542, at para. 3.

[^36]: R. v. Pham, 2005 CanLII 44671 (ON CA), [2005] O.J. No. 5127 (C.A.), aff'd 2006 SCC 26, [2006] 1 S.C.R. 940.

[^37]: R. v. Savory, 1996 CanLII 2001 (ON CA), [1996] O.J. No. 3811 (C.A.) at para. 7.

[^38]: R. v. McIntosh, [2003] O.J. No. 1267 (SCJ), at para. 43.

[^39]: R. v. Villaroman 2016 SCC 33, para 55.

[^40]: R. v. Biggs 2016 ONCA 910, para 17.

[^41]: R. v. Anderson-Wilson 2010 ONSC 489 (SCJ), para 68, at paras 72-73.

[^42]: The value of the 381 grams of cocaine would have been between $30,480.00 and $45,270.00 if sold by the gram and between $16,200.00 and $21,600.00 if sold by the ounce.