Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 04 23 COURT FILE No.: Central East Region: Oshawa Court: File No. 19-A37430

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MATTHEW CECCHETTO, DYLAN PAQUETTE and CARLY ALMON

Before: Justice Peter C. West

Heard on: January 13, 14 and 15, 2021 and March 9, 2021 Reasons for Judgment released on: April 23, 2021

Counsel: Mr. G. Raven.................................................................. counsel for the Crown Mr. C. Amodeo............................ counsel for the accused Matthew Cecchetto Mr. M. Jacula..................................... counsel for the accused Dylan Paquette Mr. P. Affleck......................................... counsel for the accused Carly Almon

WEST J.:

[1] The defendants are charged with 1. possession of fentanyl for the purpose of trafficking; 2. possession of methamphetamine for the purpose of trafficking; 3. possession of cocaine for the purpose of trafficking and 4. possession of oxycontin. The charge of possession of oxycontin was withdrawn by the Crown.

[2] An application to cross-examine the sub-affiants of an Information to Obtain was argued on October 19, 2020. This application was dismissed in written reasons on November 5, 2020. The Garofoli application was abandoned by the parties and the trial commenced on January 13, 2021.

[3] The Crown advised at the beginning of his written submissions, dated March 30, 2021, that pursuant to s. 579(1) of the Criminal Code, the Crown was directing that all charges on the information be stayed as against Carly Almon and Matthew Cecchetto. I received written submissions from Mr. Jacula, dated April 5, 2021, on behalf of Dylan Paquette. I also received submissions from Mr. Affleck, on behalf of Carly Almon, given his indication originally when the matter was adjourned that he would provide written submissions. I want to express my appreciation and gratitude to counsel for their focused written submissions respecting this matter. Mr. Amodeo advised he would not provide written submissions as a result of the Crown’s intention to stay the charges against Mr. Cecchetto.

Factual Background and Findings of Fact

[4] On September 9, 2019, P.C. Roffey and P.C. Wilson were tasked with investigating Dylan Paquette in respect of an allegation that he assaulted a woman on September 4, 2019, which resulted in her suffering a broken jaw. Based on the statement of the complainant, the officers had reasonable grounds to arrest Mr. Paquette for assault causing bodily harm, simple assault and uttering threats to an animal. The police had information that Mr. Paquette was known to stay in various motels in the area of the Whitby/Oshawa border.

[5] The drug charges arose as a result of P.C. Roffey and P.C. Wilson attending the Travel Lodge Motel on September 9, 2019, located at 940 Champlain Avenue, Oshawa to determine if Dylan Paquette was renting a room at that motel. Both officers were in uniform. The officers were advised by the clerk on duty at the Travel Lodge that Dylan Paquette had rented Room 122 the previous day.

[6] P.C. Roffey and P.C. Wilson attended Room 122 to see if Dylan Paquette could be located. At 9:56 a.m., P.C. Roffey knocked repeatedly on the front door to the room from the 1st Floor hallway but no one responded. Other officers had been requested to attend the Motel as the officers had been advised Mr. Paquette could potentially be armed with a firearm. P.C. Curcio was with P.C. Roffey at the door in the hallway.

[7] P.C. Wilson went to the patio door of the motel unit and observed the curtain was drawn. P.C. Handscomb was with P.C. Wilson. P.C. Wilson could hear over the radio that P.C. Roffey was conducting a door knock on the front door of Room 122. She observed movement behind the curtain and a male person, holding a skateboard, slid the curtains open partially and then shut them after seeing P.C. Wilson, who was in uniform. She believed he might have been attempting to come out the patio door. She knocked on the door and requested the male person to open it, which he did.

[8] P.C. Wilson advised the male person who opened the patio door that the police were looking for Dylan Paquette and the male person advised her Dylan Paquette was not present, as he had left earlier for work. The male person who answered and opened the patio door verbally identified himself as Matthew Cecchetto. P.C. Wilson observed someone sleeping on the bed farthest from the patio door and asked who that person was. Mr. Cecchetto advised this person was a female and not Dylan Paquette. According to P.C. Wilson, Mr. Cecchetto then told her she could come into the room and see for herself that Mr. Paquette was not present.

[9] P.C. Wilson, after being invited into the motel room by Mr. Cecchetto, observed, in plain view, a number of items that appeared to be drugs and drug paraphernalia within the motel room. She observed various pieces of equipment that she believed were indicative of drug possession, drug use and possibly production. Upon entering the room, Cst. Wilson observed the following items in plain view on the desk, which was a few feet from the patio door against the wall:

a) Black plate with a white powder residue, she believed to be cocaine. b) A bent silver prepaid Visa card with white powder residue, believed to be cocaine. c) White powder residue scattered throughout the top of the desk believed to be cocaine. d) A black plastic basket containing cell phones and digital weigh scales. e) Small clear plastic dime baggy. f) A small metal measuring cup with handle with white powder residue believed to be cocaine.

[10] P.C. Wilson also noted an open green bin in front of a dresser with a television on it, in which she observed the following items:

a) Duct tape, b) A metal cooking pot, c) A glass measuring cup with white powder residue, d) Plastic tubing, e) 2 butane canisters

[11] She also noted the fire alarm had been removed and placed on the dresser beside the TV. P.C. Wilson testified she had a concern for other guests and staff in the motel, so she stepped further into the room and saw an open cardboard box on the floor, containing:

a) dual burner element, b) large amounts of small zip-lock baggies, c) clear plastic pipes, d) Narcan kit, e) Metal spoons, steel wool, f) A black wallet, and g) Plastic tubing.

[12] P.C. Wilson testified she continued walking around the motel room because of safety concerns for other residents respecting a fire hazard arising from the cooking sources and butane canisters. She was looking through things to confirm safety. The air conditioning unit also had been opened and tampered with. One of the items she observed in the cardboard box was a plastic three drawer container. She believed there were dime baggies in the top drawer.

[13] Once she confirmed the room was safe, Mr. Cecchetto and the female person, Carly Almon, who had been sleeping on one of the beds, were arrested for possession of a controlled substances, what P.C. Wilson believed was cocaine. P.C. Roffey contacted a superior officer in the Criminal Investigative Branch while at the motel room and he received instructions to exit the motel room as a judicial authorization would be sought to search and seize any further evidence. An ITO was prepared by D.C. Naccarato seeking a search warrant to search Room 122 at the Travel Lodge Motel. Uniformed police officers remained outside Room 122 to prevent entry and maintain continuity and control of the motel room.

[14] P.C. Wilson took custody of Ms. Almon, who requested her cell phone, which was charging on a night table by the bed she was sleeping on and her handbag, which had her wallet. Ms. Almon was escorted outside for transport to the police station. At 10:12 a.m., P.C. Wilson advised Ms. Almon of her right to counsel and cautioned her. She also searched Ms. Almon’s handbag, where she found a burnt up piece of tin foil, 6 broken pieces of pipe and a clear green baggie with white powder residue. They arrived at 18 Division at 10:57 a.m.

[15] After finishing with Ms. Almon at the police station, P.C. Wilson attended back at the Travel Lodge to await the search warrant. She stayed by the patio door and did not enter the motel room 122. She left when the officers arrived to execute the search warrant.

[16] Ms. Almon was never moving around in the motel room or touching any of the items observed by P.C. Wilson. P.C. Wilson observed Mr. Cecchetto slide open the curtains and close them. The patio door was opened by Mr. Cecchetto between half to three quarters, such that P.C. Wilson was able to walk through easily when she was invited in.

[17] P.C. Wilson testified she may have moved items around in the cardboard box to see what was in it. P.C. Wilson was the first officer in the room. Mr. Cecchetto opened the front door to let P.C. Roffey into the room. I found P.C. Wilson to be a credible and reliable witness, measured and careful in her evidence, appropriately responsive and fair in her answers to questions put to her in chief and cross-examination.

[18] P.C. Roffey testified when door was opened for him by a male, Mr. Cecchetto, he observed the motel room was a mess and in disarray. He observed a cardboard box with the following items: a two burner element, pipes, small plastic bags and a wallet. It was his opinion the items he observed in the room were indicative of drug trafficking. He looked inside the wallet and found identification of Dylan Paquette. He observed a green open bin with butane cannisters, a metal pot, and tubing. As a result of some of the items he observed P.C. Roffey believed it was potentially an unsafe situation. As a result, he did a search of the room. He discovered a black safe in a Budweiser bag. P.C. Wilson advised him there was cocaine in plain view.

[19] P.C. Roffey arrested Mr. Cecchetto for possession of a controlled substance and conducted a pat down search. He brought Mr. Cecchetto’s skateboard to the station, which was leaning against the motel wall by the sliding door. He also brought the wallet with Dylan Paquette’s ID back to the station. Mr. Cecchetto was brought outside the motel room and read his right to counsel and cautioned. After processing Mr. Cecchetto at the police station, P.C. Roffey returned to the motel room to conduct scene security until the search warrant was obtained.

[20] P.C. Robinson was the SOCO officer who attended the motel room 122 before the execution of search warrant to take photographs of the interior of the room to show what it looked like after the uniform officers went into the room, observed the items referred to above and arrested the two occupants, Ms. Almon and Mr. Cecchetto.

[21] D.C. Graff, D.C. Traviss, D.C. Crosbie attended with D.C. Naccarato, who authored the ITO, and they conducted the search of the motel room with P.C. Roffey assisting as well. D.C. Graff was the exhibits officer and D.C. Crosbie took photographs of the various items seized. As one of the searching officers found an item they would call D.C. Crosbie to take photos and then provided the item to D.C. Graff to enter as an exhibit. The search warrant was executed at 6:34 p.m. Exhibit 3 is the Exhibit Log showing items seized during the search.

[22] D.C. Traviss located a Bud Light cooler bag containing cooking equipment. He then found a small black scale inside a small black basket on the desk. This basket also had a black container with white powder residue consistent with a drug. There was a silver pipe used for smoking on the desk. On the floor between the beds was a black backpack with the following items:

a) clear Tupperware container with blue lid and white substance consistent with a drug (259.5 g), b) B12 container with quantity of pills, and c) Quantity of small dime bags (orange in colour).

[23] On the floor in front of dresser with the TV was a green plastic box with cooking supplies. There was a white open cardboard box found on a chair with the following items inside:

a) Black wallet with birth certificate of Dylan Paquette Dennis Paquette, Social Insurance card in name of Dylan Dennis Paquette and Identification Services du Canada Card in name of Dylan Paquette, b) silver spoon with white residue, c) weigh scale with residue, d) Tupperware container, e) plastic blue organizer with drawers (pipes, charcoal filters), f) blue propane torch, and g) 2 burner hot plate.

[24] On an ironing board there was a makeup bag with 5 white pills “N2”.

[25] P.C. Roffey conducted a search of the safe, which was a black Sentry safe. It was locked so he tossed it on the floor and it broke open. He could not recall the locking device on the safe. In the safe was another black container with the following items:

a) black bag with substance believed to be crystal meth (14.4 g), b) clear plastic bag with substance believed to be cocaine (12.1 g), c) white plastic bag with pills (10), d) dime bags, e) plastic container with green lid, f) clear container with red “X” on top with #1 white substance (5.0 g), g) clear container with Red “X” on bottom #2 white substance (0.4 g), and h) 6 X Grey Pills “ALZA27”.

[26] P.C. Roffey also found a white storage container with 3 drawers. In the top drawer he found Dylan Paquette’s Ontario Driver’s License underneath a large number of small clear plastic zip lock baggies with blue stars and small yellow square pieces of plastic with triangles and an image (3 half circles) inside the triangle (referred to as “dime” baggies). It is my view from the photographs that the yellow pieces of plastic with a triangle and three half circle pattern are not baggies, rather they are tiny pieces of plastic, their purpose unknown from the evidence. I do not agree with the Crown’s position that these yellow squares of plastic with a triangle with a three half circle pattern were dime baggies. The actual blue star dime baggies and yellow pieces of plastic with triangle and a three half circle pattern were not provided in evidence and can only be viewed through photographs. The significance of these baggies with blue stars and the yellow pieces of plastic was not indicated in the evidence of the police officers, other than the fact dime baggies are often utilized to sell specific quantities of illicit substances so the drug trafficker does not have to bring out his stash in front of a purchaser. No evidence was led to indicate whether these particular dime baggies with blue stars are commonly utilized or whether they are unique or rare. P.C. Roffey also found two larger clear baggies in the bottom drawer with a white powdery substance in each. (6.8 g and 60.0 g). He turned these items over to D.C. Graff. P.C. Roffey brought the Driver’s Licence back to the police station along with the black wallet and Dylan Paquette’s identification.

[27] I find P.C. Roffey to be a credible and reliable witness who did not embellish his testimony and who was prepared to admit any mistakes he made respecting his notes. When his evidence was challenged in cross-examination I found his answers were directly responsive and fair and not evasive in any way. He was a forthright witness whose explanations for any discrepancies between his notes/reports and photographs taken at different times during the police investigation were logical and accorded with common sense. An example of this related to photographs showing a portion of a skateboard by the sliding door in P.C. Robinson’s SOCO photos and later photographs taken during the execution of the search warrant by D.C. Naccarato, where the skateboard cannot be seen. The skateboard belonged to Mr. Cecchetto and P.C. Roffey had taken it from the hotel room as it belonged to Mr. Cecchetto and he requested it be brought to the police station. P.C. Roffey conceded he did not make any notes respecting this. In my view P.C. Roffey’s explanation provided a complete and logical explanation for the absence of the skate board in D.C. Naccarato’s photograph.

[28] D.C. Graff sent nine (9) Health Canada envelopes for analysis of the different substances and pills found by the search officers. Below is a list of the items sent for analysis to Health Canada and the results.

a) Item in black Safe (black bag with substance believed to be crystal meth 14.4 g) 1.2 g sent to Health Canada: Exhibit # ON0017477 tested as Schedule I: methamphetamine, b) Item in black Safe (clear plastic bag with white substance believed to be cocaine 12.1 g) 0.5 g sent to Health Canada: Exhibit # ON0062024 tested as Schedule I: Cocaine, c) Item in black Safe (white plastic bag 10 pills) 1 pill sent to Health Canada: Exhibit # ON0017467 tested as Schedule I: Fentanyl, d) Item in black Safe (6X Grey Pills “ALZA27”) 1 pill sent to Health Canada: Exhibit # ON0017473 tested as Schedule III methylphenidate, e) Item in black Safe (clear container with red “X” on top with #1 white substance 5.0 g) 5.0 g sent to Health Canada: Exhibit # ON0017470 tested as sodium bicarbonate, f) Item in black Safe (clear container with Red “X” on bottom #2 white substance 0.4 g) 0.4 g sent to Health Canada: Exhibit # ON0017472 tested as Phenacetin, g) Item in black backpack (Clear Tupperware container 259.5 g) 0.9 g sent to Health Canada: Exhibit # ON0017474 tested as sodium bicarbonate, h) Item in white plastic storage container (clear plastic bag white powder 6.8 g) 0.6 g sent to Health Canada: Exhibit # ON0017321, tested as Phenacetin, and i) Item in white storage plastic container (clear plastic bag white powder 60.0 g) sent to Health Canada: Exhibit # ON0017475, tested as sodium bicarbonate.

[29] Consequently, the only illicit substances found in the motel room were located in the locked black Sentry Safe after it was broken open by P.C. Roffey. None of the white residue observed in the room was collected or tested by the police.

The Law Respecting Possession

[30] There are reasonable inferences available on the evidence that one or some or all of Dylan Paquette, Matthew Cecchetto and Carly Almon were using illicit substances that left white residue on various items observed when P.C. Wilson and P.C. Roffey first entered the motel room (black plate with white residue as an example). There were a number of items observed in plain view that could be described as drug paraphernalia used in the trafficking of illicit substances and there was evidence from which there is a reasonable inference illicit substances were being cut or cooked and packaged or were intended to be cut or cooked and packaged at some future time.

[31] As indicated the only illicit substances: crystal methamphetamine (14.4 g), cocaine (12.1 g) and fentanyl (10 pills) were found inside a locked black Sentry Safe, which had to be broken open to discover what was in it. I was advised by the Crown and it was agreed to by the defence that the black Sentry safe was fingerprinted but none of the three accused fingerprints were identified as being on it or the Budweiser bag the safe was inside. I was not advised of any other forensic testing being done to the other items found in the hotel room, either by way of fingerprinting or DNA. Further, although none of the officers could recall how the safe was locked (key, combination lock or some other fashion), nothing was found on any of the three accused linking them in any way with the Sentry Safe. No identification of any of the accused was located inside the Sentry Safe when P.C. Roffey broke it open. Consequently, there is no direct evidence as to the ownership of the Sentry safe.

[32] The Crown must prove beyond a reasonable doubt that Dylan Paquette, Matthew Cecchetto and Carly Almon knew of the existence of these illicit substances found inside the locked safe and had a measure of control over them. “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.

[33] In the recent decision of R. v. Lights, 2020 ONCA 128, [2020] O.J. No. 677, 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] 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.

[34] 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, 2011 ONCA 437, at para. 13 and R. v. Lincoln 2012 ONCA 542, at para. 3.

[35] As noted in R. v. Pham, [2005] O.J. No. 5127 (C.A.), aff'd 2006 SCC 26, [2006] 1 S.C.R. 940, possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the defendant knew of the presence of the controlled substances and he had a measure of control over the substances.

[36] As to the meaning of "control", the Court of Appeal in R. v. Savory, [1996] O.J. No. 3811 (C.A.) at para. 7 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), 55 C.C.C. (2d) 183 (Ont. C.A.), aff'd. (1983), , 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), 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.

[37] To establish knowledge, it is not essential that there be direct evidence of the defendant'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, [2003] O.J. No. 1267 (SCJ), at para. 43, 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), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, [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.

Circumstantial Evidence

[38] When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole (see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20 and R. v. Lights, supra, at para. 36). A trier of fact, acting judicially, must reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole (see R. v. Villaroman, supra, at para. 55, and R. v. Lights, supra, at para. 39).

[39] Inferences consistent with innocence need not arise from proven facts, rather, they may arise from the lack of evidence: R. v. Villaroman, supra, at para. 35. As stated in R. v. Lights, supra, at para. 38:

…a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, [1972] S.C.R. 2, at p. 8.

[40] 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.

[41] These are the principles I must use in my assessment of the totality of the evidence led during this trial.

Position of the Parties

[42] It was the Crown’s position concerning Dylan Paquette that I should find the locked black safe, located by P.C. Roffey in the Budweiser bag, belonged to Mr. Paquette because there was an identical or, at the very least, a similar clear plastic dime bag (with a blue star pattern) and yellow plastic squares with a triangle and three half circle pattern found in the black safe comparable to a large number of identical or, at the very least, a similar clear plastic dime bag (with a blue star pattern) and yellow plastic squares with a triangle and three half circle pattern in the open cardboard box sitting on a chair in which Dylan Paquette’s wallet with his identification was located along with various items used in cutting or cooking illicit substances. The clear plastic dime bags (with a blue star pattern) and yellow plastic squares with a triangle and three half circle pattern were found in the top drawer of a small plastic storage container (3 drawers), found in the open cardboard box, under which Dylan Paquette’s Ontario Driver’s Licence was also found. The Crown also pointed to the fact that a small amount of Phenacetin, a common cutting agent, and sodium bicarbonate, used with cooking cocaine to make crack cocaine was found in both the safe and in this plastic storage container in the open cardboard box.

[43] Mr. Jacula submitted Dylan Paquette should be acquitted because there were other reasonable inferences available based on the circumstantial evidence the Crown was relying on, which pointed to Mr. Cecchetto as being the owner of the black safe. Mr. Jacula also submitted I should be concerned about P.C. Roffey’s handling of the Budweiser bag containing the black Sentry safe and the fact that he broke the safe open by throwing it onto the floor. Further, he submitted there were continuity issues surrounding the plastic three drawer storage container where the dime baggies were located on top of Dylan Paquette’s driver’s license.

Analysis

[44] Before dealing with whether the Crown has proven beyond a reasonable doubt based on the totality of the circumstantial evidence presented in this case that Dylan Paquette was the owner of the black Sentry safe, I want to first address Mr. Jacula’s submissions and criticism relating to P.C. Roffey. As I indicated above P.C. Roffey and P.C. Wilson attended Room 122 looking for Dylan Paquette who was wanted respecting a charge of assault causing bodily harm. I found that P.C. Wilson was invited into the hotel room to see for herself that Mr. Paquette was not present. Upon entering the room she observed it was extremely messy and there was evidence of drug use, as well as what could be described as cooking equipment, which raised a safety concern. Mr. Cecchetto opened the front entrance to the hotel room and invited P.C. Roffey to come in and he then entered the room as well.

[45] Both officers had safety concerns because of the condition of the room and some of the items, such as propane torches, which were easily observable in the boxes in the room. They each conducted a cursory search of the boxes, bins and bags found in the hotel room. As a result, P.C. Roffey testified some of the items were not put back in exactly the same location as they were first observed in. It is my view there was nothing nefarious or troubling about this occurring. Further, I find if any items were moved it was not done for an ulterior motive. The officers did not remove any items from the hotel room prior to the warrant being executed other than some personal belongings of Ms. Almon (her cell phone and purse) and Mr. Cecchetto (his skateboard).

[46] P.C. Roffey first became aware of the Budweiser bag containing the black Sentry safe shortly after he first entered, and he testified he did not put the Budweiser bag, which contained the black Sentry safe exactly where he first saw it. He testified he indicated in his notes he placed the Budweiser bag and the safe next to the mini fridge, which was to the left of the dresser with the TV. This was where it was photographed by D.C. Naccarato, on a chair. In his typed report he indicated this was originally found between the beds. In cross-examination he testified he was not sure if he was the one who opened the Budweiser bag; however, it is my view he had to have opened the Budweiser bag as he knew there was a black safe inside it. P.C. Roffey also indicated he may have been asked by the CIB officer he had contacted for further information about the safe and this was why there was a difference between P.C. Robinson’s photograph and P.C. Naccarato’s photograph when the search warrant was executed. He also testified, as did P.C. Wilson, of becoming aware of the contents of the black wallet, namely Dylan Paquette’s identification, which was on top of the open cardboard box on a chair, which leads to the inference one or both of them looked inside the wallet.

[47] It is my view it would be pure speculation to suggest that P.C. Roffey or another officer placed Mr. Paquette’s driver’s license in the top drawer of the plastic three drawer container after the plastic dime baggies had been removed to make it look like the items in the container were Mr. Paquette’s property. There was no evidence to support such an allegation, as submitted by Mr. Jacula as being a “distinct possibility.” [1] In fact, the plastic storage container was in the open cardboard box, which contained Dylan Paquette’s wallet and identification, which leads to a reasonable inference the contents of the carboard box were his property. No suggestion was put to P.C. Roffey or P.C. Wilson alleging they had deliberately put a piece of identification of Dylan Paquette in the plastic storage container.

[48] There is no doubt the plastic three drawer storage container was later placed on the ironing board when P.C. Crosbie took his photographs during the execution of the search warrant. I find that this container was originally in the open carboard box, which was on a chair by the dresser. I accept P.C. Roffey’s evidence in this regard. It was removed by P.C. Roffey when he searched the drawers during the execution of the search warrant and there is a reasonable inference he may have placed it on the ironing board to search it just before the photographs were taken by P.C. Crosbie. It would appear from the photographs that P.C. Crosbie also photographed some of the contents of the plastic storage container on the bed close to the sliding door, where he was photographing other exhibits. P.C. Roffey found the numerous plastic dime baggies (with star shaped pattern) and yellow plastic squares in the top drawer. He also located two zip lock baggies in the bottom drawer, each with a white substance he suspected might be drugs but were analyzed as phenacetin and sodium bicarbonate. He seized these items and turned over to D.C. Graff, the Exhibits officer.

[49] I do not agree with Mr. Jacula’s allegation that “when looking at the pictures taken by P.C. Crosbie it quickly becomes apparent the evidence has been tampered with.” It is clear to me that one of the photographs of the top drawer shows the many dime baggies and yellow plastic squares and a portion of a black pen can also be seen. In the photograph showing the driver’s license of Dylan Paquette the dime baggies and yellow plastic squares have all been removed. In my view it is not a leap of logic to believe the pen and driver’s license were moved during the removal of the dime baggies from the top drawer. In fact P.C. Roffey in answering Mr. Jacula’s question regarding the position of the driver’s license and black pen testified that in the process of removing all of the dime baggies things got “jostled” and anything under the baggies would have been moved around. He did not know there was a driver’s license until it was exposed after he took out the dime baggies. I do not find P.C. Roffey or any other police officer deliberately put the driver’s license in the top drawer to implicate Mr. Paquette. I have listened to the court recording and Mr. Jacula never directly suggested such an allegation to P.C. Roffey, which in my view he was required to do to be able to make the allegation he did.

[50] Further, I also am not concerned about P.C. Roffey throwing the black Sentry safe to the floor to see whether it could be broken open. P.C. Roffey testified he told the CIB officer he spoke to that there was a safe in the hotel room. This was the first item he seized when he entered the hotel room to execute the search warrant with the CIB officers. The search warrant indicated they were permitted to search anything in Room 122 for illicit substances, or drug paraphernalia. P.C. Roffey knew about the existence of the safe prior to the search warrant being issued. He immediately turned over the contents of the safe to D.C. Graff after he opened it by throwing the safe on the floor. As I indicated above there was an application to cross-examine the sub-affiants by the defence prior to the commencement of this trial, which I dismissed. The defence abandoned their Garofoli application and did not renew it after hearing P.C. Roffey’s evidence in chief. I do not draw the same conclusions from the evidence as submitted by Mr. Jacula.

[51] Having rejected Mr. Jacula’s submissions respecting P.C. Roffey’s credibility and reliability, I now consider whether on the totality of the circumstantial evidence led by the Crown the only reasonable conclusion or inference is that the black Sentry safe was the property of Dylan Paquette, which would result in his being in possession of the three illicit substances found within it.

[52] The Crown did not call any evidence to establish that Dylan Paquette actually was the person who rented Room 122 at the Travel Lodge on September 8, 2019. No witness from the Travel Lodge was called to identify who actually rented Room 122 the previous evening. There was no agreed statement of fact filed respecting this issue. Consequently, the information received by P.C. Roffey from the front desk is pure hearsay and not admissible for its truth. The Crown concedes this in his submissions. Further, there was no evidence led as how many days Room 122 was rented for. It certainly is admissible to explain P.C. Roffey’s and P.C. Wilson’s actions of going to the room to look for Mr. Paquette. However, this creates a gap in the evidence, which would have established some measure of control over the contents found in this room by whoever had rented it, although as per R. v. Lights, at para. 50, “When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3.” The Crown also indicated he was not relying on Mr. Cecchetto’s comment to P.C. Wilson that Mr. Paquette had left the hotel room to go to work, when she advised Mr. Cecchetto the police were looking for Dylan Paquette. I do not know when Dylan Paquette was arrested in relation to the date the police attended the Travel Lodge, other than it was several days later.

[53] It is my view there is certainly an inference that Dylan Paquette at some point had been in room 122, given his wallet and identification were located in the cardboard box on a chair. He was not in the room when the police entered it on September 9, 2019. The only evidence of who slept in which bed was P.C. Wilson’s evidence that she observed Carly Almon sleeping in the bed farthest from the patio door. It is unknown whether Dylan Paquette or Matthew Cecchetto or both or neither slept in the other bed, closer to the patio door. It is unknown at what point any of the accused were inside Room 122, other than the evidence of P.C. Wilson and P.C. Roffey, who observed both Matthew Cecchetto and Carly Almon in the room when they entered it looking for Dylan Paquette around 10 a.m., on September 9, 2019. There is no evidence whatsoever as to when Dylan Paquette was present in Room 122, if at all.

[54] The Budweiser bag containing the black Sentry Safe was originally observed by P.C. Roffey on the floor between the two beds, closer to the empty bed. Also closer to this bed was the Bud Light cooler bag with cooking equipment and the black backpack that was also on the floor, which contained a large quantity of sodium bicarbonate (259.5 grams) in a plastic container. There was nothing in any of these items identifying who they belonged to. There was no evidence as to who brought these items to Room 122. No forensic evidence, either fingerprint or DNA, was led by the Crown indicating who had handled any of these items.

[55] The black plate with white residue, the bent credit card with white residue, and the weigh scale were on the desk by the patio door. The white residue and the white powder on the desktop was believed to be cocaine, although it was not collected or tested. There is a reasonable inference that someone who was in the hotel room had used cocaine after it was rented given the black plate with white residue and the bent credit card with white residue. There were a number of cell phones in a black basket on the desk, but no evidence was led by the Crown relating to the police obtaining a warrant to search these phones and no evidence was given as to who these phones belonged to. It should be noted Ms. Almon’s purse had an empty small green baggie with white residue and broken glass pipes used to take drugs. Her cell phone was returned to her by P.C. Wilson who located it on a night table charging by the bed she was sleeping in. There is a reasonable inference available that Ms. Almon had used illicit substances at some point given the police observing these items in her purse.

[56] The green plastic bin and white cardboard box were in the area of the dresser with the TV on it. Dylan Paquette’s black wallet containing a number of pieces of his identification was on top of the items inside the open cardboard box, which was found on a chair just past the dresser with the TV on it. The plastic storage container with three drawers was originally observed by P.C. Roffey inside the open carboard box. I believe from the photographs it had been removed and ended up on the ironing board prior to or during the execution of the search warrant. This plastic storage container also contained phenacetin and sodium bicarbonate in zip lock bags in the bottom drawer, as well as a number of plastic dime baggies (with a blue star pattern) and tiny yellow plastic squares with a triangle symbol and three half circle pattern were found in the top drawer.

[57] There was no evidence led by the Crown as to whether any actual cooking of illicit substances took place in the hotel room prior to the attendance of the police on September 9, 2019. There was certainly a considerable amount of cooking equipment in a number of locations within the hotel room: the white open cardboard box, the green plastic bin and the Bud Light cooler bag. Apparently one of the officers noted there was rice present in one of these items, which would suggest the cooking equipment might have been there to cook food. The only evidence connecting any of the three individuals charged to these items was Mr. Paquette’s wallet and his driver’s license found in the open cardboard box, which leads to a reasonable inference of the contents of this cardboard box belonging to him. Further, there was both a cutting agent, phenacetin, and sodium bicarbonate, used to make crack cocaine, according to the drug expert, found in a number of items: the black Sentry safe, the black backpack and the open white cardboard box (plastic storage container with three drawers).

[58] It is my view from this evidence that all, some or one of the three individuals who were staying in this hotel room may have intended at some point in time to possibly make crack cocaine or cut powdered cocaine to increase the quantity possessed or possibly cook some food. The difficulty is that there was no evidence from which to conclude when that was going to occur or whether all, some or one of individuals in the hotel room were involved.

[59] The evidence of P.C. Roffey was clear that when he first discovered the black Sentry safe inside the Budweiser bag, the safe was locked and could not be opened. P.C. Roffey could not recall the locking mechanism on the safe. After the search warrant was obtained to search the motel room, P.C. Roffey took the safe out of the Budweiser bag and threw it onto the floor, causing the safe to break open so he could see what was inside of it. There was no forensic evidence led respecting the Budweiser bag or the black Sentry safe or the safe’s contents or the black knapsack or Bud Light cooler bag, which tied any of those items to Mr. Paquette. These items were in a different area of the hotel room to the open white cardboard box and were sitting on the floor between the two beds but closer to the bed near to the sliding door leading outside. I do not know who, if anyone, slept in this bed.

[60] P.C. Wilson observed movement behind the curtains covering the sliding door before it was finally opened by Mr. Cecchetto. She was unable to see what he was doing before she saw him at the door with his skate board about to leave. Mr. Jacula suggests maybe he was locking the safe inside the Budweiser bag. I cannot exclude this as a possibility.

[61] The Crown submits that the circumstantial evidence in this case establishes the only reasonable inference available is that Dylan Paquette is the owner of the black Sentry safe and is therefore in possession of the cocaine, crystal methamphetamine and the fentanyl pills. Mr. Raven points to the clear plastic dime baggie and yellow plastic squares with the triangle and three half circle pattern inside this dime baggie, the small quantity of phenacetin and sodium bicarbonate in the safe and the fact that similar items were found in the open white cardboard box to support his submission that there is a reasonable inference the safe belongs to Dylan Paquette.

[62] I have 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.

[63] 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.

[64] 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, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56, 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, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15).

[65] There was no evidence led by the Crown concerning the small clear plastic dime baggies (with the blue star pattern), where they could be purchased, whether they were readily available or were rare or unique. No evidence was led respecting the yellow squares with the triangle and three half circle pattern as to what they were used for or where they could be purchased or whether any particular meaning could be drawn from their presence. From the evidence called I have no idea what the significance of these particular dime bags or the yellow plastic squares was.

[66] Phenacetin was described by D.C. Aiello, the drug expert, as being a common cutting agent used to increase a drug trafficker’s quantity of cocaine. No evidence was led as to the composition of phenacetin and whether the different quantities were identical in composition. D.C. Aiello also described sodium bicarbonate as the substance that is added to cocaine and cooked to make crack cocaine. Both of these substances were commonly utilized by drug traffickers according to the drug expert. No other evidence was led to demonstrate that the substances found in the black Sentry safe were exactly the same in their chemical composition or if there is any way to distinguish or relate the different quantities of these substances discovered in the different items found in the hotel room.

[67] It is my view looking at the whole of the evidence led during this case there are a number of alternative reasonable inferences available as to which of the three individuals purportedly occupying Room 122 from sometime on September 8, 2019 to the morning of September 9, 2019, just prior to the arrival of the police, was the owner of the black Sentry safe. No evidence was led as to the method this safe could be locked. There was no evidence led as to whether the search incident to arrest of Ms. Almon and Mr. Cecchetto turned up a key, which might have been used to open the Sentry safe if it was locked using a key. P.C. Roffey searched Matthew Cecchetto and he had located the locked safe before he placed Mr. Cecchetto under arrest. He did not describe finding a key on Mr. Cecchetto or if he did then in my view he failed to recognize its significance.

[68] The difficulty is that I am unable to conclude that the only reasonable conclusion based on the whole of the evidence is the guilt of Dylan Paquette. Mr. Paquette was not in the room when the police arrived. The only evidence from which a reasonable inference could be drawn that Dylan Paquette possibly was in Room 122 at some point in time was the presence of his wallet and driver’s license in the open carboard box, although this piece of circumstantial evidence might only lead to a reasonable inference that the open cardboard box and its contents was his property. There was no evidence that directly established Dylan Paquette was in Room 122 at any point in time.

[69] In my view the evidence relating to the inference sought by the Crown respecting the similarity between the one dime bag found in the safe and the many dime bags (with the star pattern) found in the top drawer of the storage container does not lead only to the reasonable inference that Mr. Paquette is the owner of the safe. It is my view the conclusion argued by the Crown concerning the similarity of the single dime baggie (with the blue star pattern) in the safe and the multiple dime baggies found in the top drawer of the plastic storage container was something that was arrived at after the evidence was completed, particularly given the lack of any comparison by the officers involved in the investigation. None of the police officers who testified, including the drug expert, made any connection between these dime baggies in their evidence nor were they questioned about any similarities, if any existed. The fact that a commonly used cutting agent, phenacetin and common substance like sodium bicarbonate used with cocaine to make crack cocaine does not make the Crown’s submission more persuasive or compelling.

[70] The analysis and observations of Justice Watt in R. v. Lights (paras. 104-105) are fitting and apply similarly to the facts in this case and I adopt them:

104 In this case, the evidence disclosed that, although he did not sign the lease, the appellant was a principal occupant of the apartment. And as the principal occupant, it is reasonable to infer that the appellant controlled access to the premises.

105 But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband. [Emphasis added]

[71] I do not know who rented Room 122, although this evidence surely was available to be called by the Crown. There was no direct evidence establishing which of the three individuals brought the safe, the Budweiser bag, the black knapsack, the green plastic bin, or the Bud Light cooler bag to the hotel room. Although there appear to be bags containing clothing in the hotel room from the photographs, there was no evidence led by the Crown itemizing those articles of clothing, who they belonged to, whether it was male or female clothing. In fact, I do not believe the police gave any consideration to these bags of clothing when they were executing the search warrant. There was no evidence, forensic or otherwise, as to who the safe belonged to, how it got to be where it was found, or who knew what was in it. There was nothing inside the safe that identified its owner. The safe was locked but P.C. Roffey did not make any note of what the locking mechanism was and had no recollection of how it was locked. P.C. Roffey did not know if throwing it onto the floor would break it open. In my view these gaps in the evidence prevent me from drawing the inference sought by the Crown respecting Dylan Paquette as being the only reasonable conclusion respecting who owned the black Sentry safe.

[72] In all of the circumstances of this case the Crown has failed to prove beyond a reasonable doubt that Dylan Paquette knew what was in the safe and had control over its contents such that the only reasonable inference on the whole of the evidence was that he was in possession of the illicit substances inside the safe and as a result, the charges of possession for the purpose of trafficking will all be dismissed against him.

[73] I should also indicate, if the Crown had not stayed the charges facing Carly Almon and Matthew Cecchetto, I would have come to the same conclusion respecting each of them and I would have found the Crown failed to prove beyond a reasonable doubt their guilt on the charges and consequently, I would have dismissed all of the charges they faced.

Released: April 23, 2021 Signed: Justice Peter C. West

[1] See paragraphs 20-21 of Mr. Jacula’s Written Submissions.