W A R N I N G

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY — (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court and Parties

DATE: December 17, 2021 ONTARIO COURT OF JUSTICE (Central East Region)

Between:

HER MAJESTY THE QUEEN

— AND —

BOGDAN BUTEAN, JUSTIN DAVID GURLEY, NATALIE TOVAH ABUHAV

Before: Justice J. Sickinger Reasons for Judgment released on: December 17, 2021

Counsel:

M. Zannese........................................................................................... counsel for the Crown T. Smith.............................................................................counsel for the accused B. Butean M. Kerbel......................................................................... counsel for the accused N. Abuhav R. Chartier......................................................................... counsel for the accused J. Gurley

SICKINGER, J.:

[1] Mr. Gurley faces one count of Possession for the Purpose of Trafficking Cocaine and one count of Possession of Cannabis for the Purpose of Distribution. Mr. Butean faces one count of Possession for the Purpose of Trafficking Cocaine, one count of Possession for the Purpose of Trafficking Xanex, and one count of Possession of Cannabis for the Purpose of Distribution. Ms. Abuhav faces one count of Possession for the Purpose of Trafficking Cocaine, one count of Possession of Cannabis for the Purpose of Distribution and one count of Possession for the Purpose of Trafficking Percocet. All Accused faced other counts, for which a preliminary inquiry is not available.

[2] This matter was originally set down for a 5-day preliminary hearing, committal was at issue on all counts at the outset. Instead of calling viva voce evidence to make out committal, as was initially intended, the Crown instead choose to tender what was, for all intents and purposes, the Crown brief through a s.540(7) application. All Defence Counsel were initially opposed to this.

[3] The Crown called Det. Brandon Kubels, who gave a very brief overview of the investigation and testified generally as to how police officers’ notes are made. He gave no substantive evidence on the preliminary hearing.

[4] After the evidence in-chief examination of Det. Kubels all Defence Counsel consented to proceeding on the basis of the information contained in the Crown’s s.540(7) application, and chose not to cross-examine any witnesses. It should be noted that Defence Counsel clearly stated that they did not agree that everything contained in the s.540(7) was admissible evidence on the preliminary inquiry, particularly where the officers’ notes contained information received from other sources or statements of other persons.

[5] I can state very clearly that it is unlikely this Court would have admitted the Crown’s brief in the proposed manner, but for the consent of Defence Counsel. Regardless of any agreement, this Court is still required to consider what facts can be established from the information contained in the s.540(7) brief. This is not a weighing of the evidence, but a parsing out of what evidence is properly available to this court as credible or trustworthy, and therefore admissible. Keeping in mind that the Crown’s case with respect to possession is entirely circumstantial and will require an assessment of available inferences.

[6] The bulk of the evidence that the Crown seeks to rely on is made up of police officers’ notebook notes. Anyone who has ever been involved in a criminal prosecution knows that the quality and readability of officer notes varies greatly between officers. Some of the notes are legible, detailed and well organized; some of the notes are not. This is not necessarily a criticism of the officers, officers’ notes are not meant to be provided to a judge in lieu of viva voce testimony, but are meant to provide an aid memoire while testifying, and to provide disclosure of the investigation to the defence during preparation.

[7] The Crown’s s.540(7) application provided a roadmap. This written submission is not evidence and on more than one occasion did not accurately set out the information contained in the officers’ notes.

[8] As well as the police officers’ notes, the s.540(7) application also contained a drug expert report, cellphone extraction reports, photos and videos taken during surveillance and search warrant executions, and other information. The information was extremely voluminous, including a cellphone extraction report that numbered almost 11,000 pages.

Surveillance

[9] It is often unclear from the various officers’ notes whether or not the officer is making the actual observations, or if that information being is conveyed by another member of the team. There are also unexplained abbreviations used on numerous occasions, pages that are not dated or numbered and poor-quality photocopying of the notes. The abbreviations T1 and T2 (target 1, target 2) are used frequently, some officers indicate who T1 or T2 are, others do not. The crown called no evidence in the case of officers who do not identify the target of their surveillance in their notes to determine who, in fact, the notes referred to.

[10] Three locations of interest emerged from the investigation; 169 Carrville Road in Richmond Hill, 189 Carrville Road in Richmond Hill and 257 Cedar Ave. in Richmond Hill.

[11] The following is discernable from the officers’ notes as provided, not all of what is outlined below is ultimately admissible pursuant to s.540(7) of the Criminal Code.

[12] Surveillance was conducted by York Region Police on the three above named address, for the period between August 20, 2019 and September 25, 2019. On September 25, 2019 search warrants were executed at all three addresses.

[13] 257 Cedar Ave. was the family home of the accused Bogdan Butean, there is no evidence before this court as to the owners or legal occupants of the other two addresses.

[14] On August 20, 2019 Mr. Butean is observed in the area of 257 Cedar Ave. getting into a van driven by an unknown female. The Crown’s s.540(7) application indicates that the van is registered to Daniel Joseph Abuhav and that this information in contained in the notes of D.C. McSherry on August 20, 2019. A review of the notes of D.C. McSherry show this to be incorrect.

[15] On August 27, 2019 someone, who might be Mr. Butean, is observed by York Region Police at 257 Cedar Ave. It is unclear from the combination of officer notes provided for this day. Some officers refer to observations of an unnamed T1 interacting with cars outside of 257 Cedar Ave. No specific observations of transactions are made. The notes of D.C. McSherry indicate specific observations of “Butean”, but only that he goes to 169 Carrville Rd. from 257 Cedar Ave. on that day. Mr. Gurley is also observed exiting 169 Carrville Rd. on the same date.

[16] On August 29, 2019 Mr. Butean meets with an unknown male in the driveway of 257 Cedar Ave. and they shake hands. Mr. Butean travels from 257 Cedar Ave. to 169 Carrville Rd. Some observations consistent with drug trafficking activity are made by officers on this date in the immediate area around 169 Carrville Rd. Mr. Butean is also seen entering the residence at 189 Carrville Rd.

[17] The Crown’s s.540(7) application indicates that D.C. Pampena and Det. Moore observe Mr. Gurley at 169 Carrville Rd. at 9:55pm on this date. A review of those notes does not bear this out.

[18] The Crown’s s.540(7) application refers to observations made by Det. Kubels on August 30, 2019. On this date Det. Kubels, in his notes, refers to “T1”, as well as to Mr. Gurley and Mr. Butean by name. On this date Mr. Gurley is observed making a suspected hand to hand transaction outside of 169 Carrville Rd. He is also observed doing yard work at 189 Carrville Rd. There is no indication in the notes for this date that Mr. Butean is T1, in fact, there are notes and observations that refer specifically to “Butean”. On this date there is nothing of note observed relating to Mr. Butean.

[19] On September 4, 2019 Mr. Gurley was observed at both 169 Carrville Rd. and 189 Carrville Rd. Mr. Butean is also observed at 169 Carrville Rd.

[20] On September 19, 2019 Mr. Gurley is observed at 169 Carrville Rd. and 189 Carrville Rd. He interacts with a vehicle that pulls into the driveway for a short period of time, no exchange is observed. An unknown male is observed going into 189 Carrville Rd. with a duffle bag, he leaves approximately 10 minutes later, officers believe the bag appears lighter.

[21] On September 20, 2019 Mr. Butean is seen conducting what police believe are a series of suspected drugs transactions at 169 Carrville Rd. and 189 Carrville Rd. One vehicle leaving the area was followed and stopped, after first attending another location. Police located cocaine and marijuana in the vehicle.

[22] A number of other unknown persons are seen to enter and exit 169 Carrville Rd. and 189 Carrville Rd. during the course of the surveillance. These persons are also observed engaging in suspected drug transactions. Entry to either residence does not seem to be restricted, and no one entering or exiting either residence is seen using a key.

September 25, 2019 – Arrests of Accused Parties

[23] On September 25, 2019 at approximately 11:34am Det. Kubels observes Mr. Butean outside of 189 Carrville Rd. conduct what he suspects is a hand to hand drug transaction. Mr. Gurley is observed walking from 169 Carrville Rd. to 189 Carrville Rd., entering the garage and leaving on his motorcycle. He returns to 189 Carrville at 1:48pm, enters, then exits 2 minutes later. He walks to 169 Carrville Rd. carrying a backpack and enters.

[24] The Crown indicates in the s.540(7) application that Mr. Gurley was arrested at 169 Carrville Rd. By York Region Police ERU officers. No notes from any ERU or initial arresting officers have been provided as part of the s.540(7) application. The s.540(7) application further indicates that the evidence with respect to the arrest of Mr. Gurley is contained in the notes of Det. Moore #1424 and D.C. Pampena #2115.

[25] The notes of Det. Moore indicate that at 14:00 he was “staging @ 2nd loc.”, no further information is provided at to where this is. His notes indicate at 14:04:

“Arrrested:

GURLEY, Justin (T2) DOB:01MAR94

SU, Alexander (found in apt. w T2) DOB: 30APR99”

No source is provided for this information, Det. Moore did not make entry into 169 Carrville Rd. at this time.

[26] Det. Moore’s notes indicate that he dealt with someone by the name of Lennox Williams, who was detained and then released. His notes further indicate that Mr. Gurley was turned over to D.C. Pampas. He took custody of Mr. Su from P.C. Leece #2217, and stated “advised he was found in apt w Gurley”. The notes of P.C. Leece have not been provided as part of the s.540(7) application.

[27] Det. Moore’s notes indicate that he:

“-attended res w Sgt McKenzie #1613

-Apt where GURLEY + SU located pointed out”

The notes of Sgt. McKenzie were not provided as part of the Crown’s s.540(7) application. No information is provided in Det. Moore’s notes as to where the above information came from. 169 Carrville Rd. contained a number of separate, self-contained units.

[28] The notes of D.C. Pampena indicate at 14:00 “ER Carrville from Staging Area”. They further state at 14:07 “GURLEY arrested by ERU – Houlieff #1799 (advised)”. There is nothing in D.C. Pampena’s notes to indicate where this information came from. The notes of Houlieff have not been provided as part of the Crown’s s.540(7) application. No further evidence with respect to the arrest of Mr. Gurley was provided as part of the Crown’s s.540(7) application.

[29] The Crown states, in the s.540(7) application, that Ms. Abuhav was found during the execution of the search warrant at 189 Carrville Rd. The stated basis for this are the notes D.C. Petersen. The notes of D.C. Petersen indicate that she is waiting a “few houses down the sidewalk for safety” while entry is made into 189 Carrville Rd., there is no indication that she can see 189 Carrville Rd. from this location. The notes then indicate that at 14:04 “ERU Durham brought female out of residence in handcuffs. Female uniform officer P.C. Richards #2255 female wearing underwear and sports bra – due to this female immediately placed in P.C. Richard’s M/V”. No source for the above information is provided in the notes. The notes of P.C. Richards have not been provided as part of the Crown’s s. 540(7) application.

[30] A few pages further on in the notes of D.C. Peterson the female is identified as Abuhav, Natalie Tovah. There is no indication where this information comes from. D.C. Petersen makes no mention of Mr. Butean after entry is made into 189 Carrville Rd. by the ERU officers.

[31] The notes of Det. McKercher #1559 indicate that at 13:58; “turn attention back to 189 Carrville Rd. Can hear TAC members continuously telling the occupants of 189 Carrville Rd. to come out with hands up”. It is unclear where Det. McKercher is while making these observations. He seems at best to be an “ear” witness.

[32] His notes then indicate that a “short time later a Durham Tactical Member appears at sidewalk and walking towards me and D.C. Petersen with a female party (20-23yrs, W/F, bra and underwear). Female is an occupant/located in 189 Carrville”. No further information with respect to the source of above is provided.

[33] His notes then indicate that “2 parties being walked towards myself, 1304 and 1895. Durham Tactical has them in cuffs”. At 14:13 Det. McKercher’s notes state that a male he recognizes as Mr. Butean is turned over to him. He notes that the Durham Tactical Officer who turned over Mr. Butean was #3151, no notes from this officer have been included in the Crown’s s. 540(7) application. No information as to where Mr. Butean was located or arrested by officers is provided in the notes of Det. McKercher. There is an utterance by Mr. Butean made to Det. McKercher recorded in his notes, no application to admit any statements of Mr. Butean was brought by the Crown in this matter.

[34] This is the sum total of the evidence provided by the Crown with respect to the connection between the Accused and the residences searched on September 25, 2019. No evidence of any officer, who located any party in either residence was provided.

September 25, 2019 – The search of 169 Carrville Rd.

[35] D.C. Pampena located a large bag of cannabis in the garage of 169 Carrville. Rd., this garage is not exclusive to one unit. Only unit 3 was searched, officer notes state they are of the opinion that unit 3 belongs to Mr. Gurley. No firsthand source for this information is provided. Seven small baggies of cocaine were located inside the toilet tank of the washroom in unit 3. Further cannabis was seized in room 3 and 6, along with packaging, shipping bags, three cellphones and keys on a red lanyard. Two envelopes of Canadian currency were located on the dresser in room 3. A backpack was located which contained a receipt for the rental of a storage unit that was eventually traced back to Mr. Gurley. The address on the receipt indicated that Mr. Gurley lived at 555 Edwards Ave. in Richmond Hill, the receipt was dated September 24, 2019.

September 25, 2019 – The Search of 189 Carrville Rd.

[36] During the search of 189 Carrville Rd. 10 vials which contained a dark liquid were found, as well as a used syringe. The vials were located in the drawer of a storage unit under the television. Three bags of cocaine and empty plastic dime bags were also located in the same storage unit. Further cannabis and four digital scales were seized in room 6.

[37] Room 2 was searched, a white pill bottle containing white pills stamped with “TEC” was located under the sheets of the bed with a white iPhone. Two stacks of bundled Canadian currency were located inside a pink gym bag and red Nike backpack found in the closet. The pink gym bag also contained Mr. Abuhav’s passport. A purse was also located in the closet, it contained a bundle of Canadian currency, Ms. Abuhav’s driver’s licence and a pill bottle containing a plastic bag of white pills.

[38] Nine small bags containing cocaine were located in the toilet bowl in room 3, along with ripped grocery bags on the ground. A suitcase containing cannabis and two other bags containing cannabis were located in room 7.

[39] A digital scale was located in the kitchen, as well as a white plastic bag containing two bags of white pills with “Xanax” stamped on them and a vacuum sealer. All these items were located in drawers of the kitchen island. There were five further cellphones located in the living room area of the house.

September 25, 2019 – Search of 257 Cedar Avenue

[40] Approximately $40,000.00 in cash was located during the search of 257 Cedar Ave. A statement, which seems to have been made by Mr. Butean’s parents, was included in the notes of Det. Kubels. The statement indicates that the money belonged to them and was brought back with them from a trip to Romania.

Expert Report of D.C. Jasroop Bains #2206

[41] The report indicates that the following was seized from #3-169 Carrville Rd.: 3 cellular phones, bulk currency, drug packaging, 23 g of cocaine and 929 grams of cannabis. The notes of officers who searched 169 Carrville Rd. indicate that a significant amount of cannabis was seized from the garage area.

[42] The report indicates that the following was seized from 189 Carrville Rd: Bulk currency, 4 cellular phones, drug packaging, 5 digital scales, a vacuum bag sealer, approximately 330 grams of cocaine, 25 lbs of cannabis, 1669 pills of Etlizolam, and 152 oxycodone pills.

[43] Unfortunately, the report is of little assistance to the court on certain matters when it comes to the quantities of drugs seized, as it gives an opinion based on the total amounts seized from both locations, rather than for each location separately.

Cellphone Extraction Reports

[44] The cellphone report for the phone purported to belong to Ms. Abuhav contains just shy of 11, 000 pages. There are a number of videos referenced in the Crown’s s.540(7) application. A DVD was provided which links to the clips contained in the cellphone extraction report referenced in the s.540(7) application. There are no dates associated with the clips. There are also text messages referenced in the s.540(7) application. While those text messages reference potential drug trafficking activity involving Mr. Butean, they are dated a number of months before the search warrant execution.

The Law and Analysis

[45] It is trite law that a judge at a preliminary inquiry must determine whether or not there is any admissible evidence, relating to each essential element of the offence(s), upon which a properly instructed jury, acting reasonably, could convict (see U.S.A. v. Shepard, [1997] 2 S.C.R. 1067; R v. Arcuri, 2001 SCC 54, [2001] S.C.J. No 52).

[46] While the bar for committal is low, it is important to remember that “sufficient evidence”, in the context of a preliminary inquiry, means sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt. The evidence must be able to support the inferences necessary to establish the essential elements of the offence. (see R v. Charemski, [1988] S.C.J. No. 23 at para 35). Any inference relied upon must be based on the evidence and reasonable. Such inferences cannot be based on speculation (see R v. Munoz, [2006] O.J. No. 446 at para. 22; and R v. Coke, [1996] O.J. No. 808 at para. 9). In other words, the inferences must be a legally available. The first step in inference drawing is to establish the primary facts, these are the facts that provide the foundation for the inference, they must be established by the evidence before the court. (see R v. Munoz at para. 28). Human experience, common sense or educated guesses are not a substitute for evidence. (see U.S.A. v. Hynh, [2005] O.J. No. 4074 at para. 7).

[47] Section 540(7) of the Criminal Code allows for the admission of evidence at a preliminary inquiry, other than through viva voce testimony. The standard of admission for evidence on a s.540(7) application is not, as the crown suggest, similar to the standard on a bail hearing. Neither, is it as high as the standard to admit evidence as a principled exception to the hearsay rule. I agree with the comments of Omatsu, J. in Sonier that the standard has to be something higher than that at a bail hearing because the outcome of the preliminary inquiry is so vastly different and has such significant possible results (see R v. Sonier, [2005] ONCJ 75).

[48] The purpose behind s.540(7), when it was introduced, was to streamline proceedings in order to reduce the amount of time a matter takes to get to trial, and to protect vulnerable complainants from having to testify twice (see R v. Kirkpatrick, [2011] ONSC 6722; and Legislative History of Bill C-15A, Introduction at Part 5, (LS-40E), Revised 30 September 2002 at p. 10).

[49] This is not the circumstance in the case before this court. All of the witnesses are police officers, and the evidence stems from a sophisticated drug investigation. The Crown is seeking to use s.540(7) to admit evidence that would otherwise be inadmissible at trial, subject to a successful application to admit hearsay. Particularly, the statements attributed to the arresting officers by the Crown, contained in the notebook notes of other officers.

[50] Justice Doody, in Chretien, dealt with the role of a preliminary inquiry judge when faced with evidence that is unavailable for trial, stating at paragraph 14:

“ I note that the Supreme Court of Canada has stated in United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 at paragraphs 40 and 41 (decided after the coming into force of s. 540(7)):

I take it as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence put against the person is not available for trial. As Donald J.A., dissenting in Ortega [2005 BCCA 270] (B.C.C.A.) stated, at para. 51:

If evidence is not available for trial it should not be used as a basis for committal. The concern goes well beyond modalities and rules of evidence, it goes to the heart of the question for the judger, whether there is enough evidence to put the requested person on [sic]

I have a discretion, as I have indicated, to decline to admit a statement under s. 540(7) even if I find it to be "credible or trustworthy" within the meaning of those words in that subsection. Judicial discretion is to be exercised for appropriate reasons.

A committal for trial based on a statement which is "credible or trustworthy" but does not meet either a traditional or principled hearsay exception, when the declarant is not available to be cross-examined at trial, would be a contradiction of the very purpose of a preliminary hearing because such a statement would not be available to be used at trial.” (see R v. Chretien, 2017 ONCJ 7181 at paras. 40 & 41).

[51] I agree with this analysis and take it into account when considering what statements are credible or trustworthy for admission in this case. Justice Doody gave guidance, in Chretien, in terms of a non-exhaustive list of factors to consider when determining whether or not a statement is “credible or trustworthy”. They include:

a) Was the statement made under oath or solemn affirmation? b) Was the maker of the statement cautioned, or warned about the importance of telling the truth and about the possible implications of not telling the truth in his statement? c) Was the statement maker cross-examined at the time of making the statement? d) If the statement was introduced, would the Crown be able to make the declarant available for cross-examination at the preliminary hearing? e) Was the statement videotaped, and if so, could the Court see the witness, the examiner, and the manner of questioning? Were there any portions of the video that were inaudible? f) Was the statement made voluntarily? g) Were open-ended, non-leading questions used? h) Whether the declarant expressed uncertainty or suggested that he or she is unsure of the events of which he is speaking? i) Whether significant areas relevant to the reliability of the declarant's statement were left unexplored or whether, in the alternative, the initial account of the declarant was followed up with detailed secondary questioning or ambiguous responses were probed with additional open-ended questions? j) The length of time between the events in issue and the giving of the statement. k) Whether any confirmatory or corroborating evidence was either present or, if it was reasonable to expect that there would be such evidence, absent?

(See R v. Chretien, supra para. 7)

[52] Justice Trotter, in R v. Rochester, [2006] ONSC 3419 dealt with the issue of admitting police officers’ notes pursuant to s.540(7) to establish a critical fact necessarily for committal. In a brief oral ruling he stated: “[I] am not persuaded that these officers notes are “credible or trustworthy” within the meaning of s.540(7), and given the way that this preliminary inquiry was framed with the Statement of Issues by defence counsel, I think at the end of the day it would just be plain unfair to proceed in the manner that’s proposed”. In that case the crown sought to introduce the officer’s evidence, with respect to exhibit continuity, through his notes. This case goes one step further and seeks to introduce the hearsay evidence of the arresting officers, through the notes of other officers without calling any viva voce evidence.

Elements of the Offence

[53] The elements of the offence of possession for the purpose of trafficking are (i) possession and (ii) a controlled substance possessed for the purpose of trafficking. The elements of the offence of Possession of Cannabis for the Purpose of Distribution are similar. The main issue in this preliminary inquiry is possession.

Constructive Possession

[54] The court of appeal in R v. Choudhury, [2021] ONCA 560, recently summed up the law with respect to possession in paragraph 19 as follows:

“There is no evidence of direct possession in this case. The Crown asks this court to infer constructive possession on the part of each accused. Constructive possession is established when an accused does not have physical custody of an object, but knowingly has it in the actual possession or custody of another person or has it in a any place for their own or another’s use of benefit (see Criminal Code, s.4(30(1); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47;)

Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.

Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.

When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.”

Analysis

[55] First off, the manner in which this preliminary inquiry proceeded was far from ideal. It was originally scheduled for 5 days, Defence Counsel all filed Statements of Issues indicating that committal was an issue, specifically that the issue of possession was critical. This is a drug trafficking case, and all the witnesses are police officers or civilian members of a police service. There are no vulnerable witnesses to be protected. The evidence in this matter is almost exclusively the direct observations of police officers, with the exception of analyses done of items seized during the course of the investigation.

[56] Rather than call direct evidence from those officers the Crown chose to provide the court with what is, for all intents and purposes, the Crown brief, introduced through a s. 540(7) application. Instead of using the 5 days set aside for this preliminary inquiry the Crown has downloaded the work of establishing the primary facts to the court. The time required, by this court, to wade through the voluminous materials provided by the Crown far exceeds the time that it would have taken in court to go through the evidence with viva voce witnesses. Further, it unnecessarily delayed the decision of this court on committal. The way in which this preliminary inquiry proceeded did not protect any vulnerable witnesses, or expedite the process.

[57] I can say very clearly that proceeding in this fashion was not in keeping with the purpose of s.540(7). Had parliament intended to create a judicial file review process then they would certainly have enacted legislation to allow for it.

Primary Facts and Legally Available Inferences

[58] The crown chose not to introduce any of the evidence of the officers who make initial contact with the Accused, even when keenly aware that possession was the main issue with respect to committal.

[59] The Crown is seeking to rely on the purported observations of the arresting officers, but in a third hand manner through the notes of other officers. This effectively denies the defence the opportunity to cross-examine the most critical witnesses in the preliminary inquiry. Further, it puts this court at a great disadvantage when it comes to determining what is credible or trustworthy evidence, and thus admissible pursuant to s. 540(7). The admissible facts, as established by the Crown’s s.540(7) application, are as follows.

Pre-warrant Execution Observations

[60] Where the accused are named in officers’ notes, during the course of surveillance, I find that the observations of those officers are admissible under s.540(7). As I indicated earlier, I may not have made this finding but for the agreement of Defence Counsel. The Crown asks, where the notes refer to T1 without indicating who T1 is, that I draw the inference that T1 is Mr. Butean. On the basis of the evidence that is before this court I cannot do so, while it may be an appealing assumption, it is not a legally available inference on the facts before this court and would constitute no more than an educated guess or speculation.

[61] Based on the evidence before this court there is a reasonable inference that Mr. Gurley was observed engaging in conduct consistent with drug trafficking activity in the time leading up to the execution of the search warrants.

[62] Based on the evidence before this court there is a reasonable inference that Mr. Butean was observed engaging in conduct consistent with drug trafficking activity in the time leading up to the execution of the search warrant.

[63] Based on the evidence before this court there is a reasonable inference that both 169 Carrville Rd., 189 Carrville Rd., and 257 Cedar Ave. are associated with the above described drug trafficking activity.

[64] There is no evidence that Ms. Abuhav was observed at either 169 Carrville Rd. or 189 Carrville Rd. engaging in conduct consistent with drug trafficking in the time leading up to the execution of the search warrant.

[65] The videos showing Ms. Abuhov, extracted from the white iPhone, are not date stamped in the version to which this court has access. Even if they provide some basis for an inference that she was involved in drug trafficking activity, they provide little assistance in this inquiry as the Court cannot determine how proximate the activity is to the offences before the court.

[66] There are significant issues with the Drug Expert Report as set out above. That being said, there is sufficient evidence before this court, based on the quantities of drugs found, the accompanying paraphernalia located, the packaging located, the currency located and the observations of surveillance officers to support a reasonable inference that the drugs seized were to be trafficked, or distributed in the case of the cannabis.

[67] The real issue before this court is whether or not there is a sufficient connection between the Accused and the drugs located to support a reasonable inference of possession, upon which a properly instructed jury could convict.

[68] No Accused is found in physical possession of any of the drugs which are the subject matter of this preliminary inquiry. The Crown must demonstrate that there is sufficient evidence upon which a properly instructed jury could infer constructive possession.

[69] The crown asks that both Mr. Butean and Ms. Abuhav be committed to stand trial on the counts which relate to the drugs located during the search of the 189 Carrville Rd.; namely the approximately 330 grams of cocaine, 25 lbs of cannabis, 1669 pills of Etlizolam, and 152 oxycodone pills.

[70] I understand that the oxycodone pills were found in the bags containing Ms. Abuhav’s identification. Counsel, quite rightly conceded, that committal was made out on that offence, being count 4 on the information, Possession for the Purpose of Trafficking Percocet.

[71] With respect to the other offences, the admissible evidence of possession is as follows for Ms. Abuhav. I find that where officers’ notes refer to statements attributed to other police officers that evidence is not properly admissible pursuant to s.540(7). When I consider the manner in which the statements were recorded, as well as the other factors outlined by Justice Doody in Chretien I am not satisfied that evidence is credible or trustworthy on a balance of probabilities. There is so little information and detail provided in the notes that it is impossible to conclude otherwise.

[72] The Crown’s evidence then, at its highest, is that Mr. Abuhav is observed by D.C. Petersen in the vicinity of 189 Carrville Rd. following the execution of the warrant and that some of her identification and belongings were located in 189 Carrville Rd. during the search.

[73] There is no evidence before this court that would permit a jury to find, beyond a reasonable doubt, that Ms. Abuhav had knowledge and control of the remaining drugs seized from 189 Carrville Rd. She is at best a “found around”, not even a “found in” during the execution of the warrant.

[74] The admissible evidence with respect to possession is as follows for Mr. Butean: I find that where officers’ notes refer to statements attributed to other police officers that evidence is not properly admissible pursuant to s.540(7). When I consider the manner in which the statements were recorded, as well as the other factors outlined by Justice Doody in Chretien I am not satisfied that evidence is credible or trustworthy on a balance of probabilities. There is so little information and detail provided in the notes that it is impossible to conclude otherwise.

[75] At its highest the Crown’s evidence with respect to the arrest of Mr. Butean is that Det. McKercher can hear the tactical team members telling the occupants of 189 Carrville to come out of the residence. After that, Mr. Butean is turned over to him some distance away from the residence by another officer. There is no evidence that Mr. Butean was arrested in residence. Mr. Butean was seen by officers a few hours prior to the execution of the search warrant conducting a suspected hand to hand transaction outside of 189 Carrville, but this does not lead to an available inference of possession.

[76] There is no evidence before this court that would permit a jury to find beyond a reasonable doubt that Mr. Butean had knowledge and control of any of the drugs seized from 189 Carrville Rd. He is also, at best, a “found around”.

[77] The Crown’s evidence with respect to possession and Mr. Gurley is as follows: I find that where officers’ notes refer to statements attributed to other police officers or persons that evidence is not properly admissible pursuant to s.540(7). When I consider the manner in which the statements were recorded, as well as the other factors outlined by Justice Doody in Chretien I am not satisfied that evidence is credible or trustworthy on a balance of probabilities. There is so little information and detail provided in the notes that it is impossible to conclude otherwise.

[78] Mr. Gurley is seen entering 169 Carrville Rd. approximately 10 or 15 minutes before the search warrant is executed. He is also seen entering the garage on that day and on previous occasions. The residence at 169 Carrville Rd. is a multi-unit dwelling, there is no indication that Mr. Gurley has exclusive control over or access to the garage area. A significant portion of the cannabis seized from 169 Carrville Rd. comes from the garage area.

[79] Similarly, to the other accused, there is no evidence before this court with respect to where Mr. Gurley is located during the execution of the search warrant at 169 Carrville Rd. The Crown agreed in submissions that there was no evidence before the court establishing that Mr. Gurley lived in any of the units at 169 Carrville Rd. A backpack with a receipt linked to Mr. Gurley was found in the same unit as some of the drugs. The drugs were not located in that backpack, but in other areas of the unit. None of the drugs were in plain view.

[80] There is no evidence before this court that would permit a jury to find beyond a reasonable doubt that Mr. Gurley had knowledge and control of any of the drugs seized from 169 Carrville Rd. He is also at best a “found around”.

[81] The inferences of possession that the Crown asks this court to draw are not legally available on the evidence before this court. It is not a question of competing inferences available from circumstantial evidence, the inferences of possession are not available at all.

Conclusion

[82] While there may be a strong suspicion that all three accused where engaged in drug trafficking activity, there is insufficient evidence before this court, when taking all of the circumstantial evidence into account, to allow a jury to draw an inference that any of the accused were in possession of the seized drugs, with the exception of Ms. Abuhav and the oxycodone. The Crown cannot therefore meet the test for committal on the remaining counts.

[83] I would commit Ms. Abuhav to stand trial on one count of Possession for the Purpose of Trafficking Percocet.

[84] I would not commit Mr. Butean to stand trial on any of the counts.

[85] I would not commit Mr. Gurley to stand trial on any of the counts.

Released: December 17, 2021. Signed: Justice J. Sickinger