R. v. Bailey, 2022 ONCJ 633
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2022 09 22 COURT FILE No.: Brampton 998 22 31105298
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
AZIEL BAILEY
Before: Justice G.P. Renwick
Heard on: 19-21 September 2022 Reasons for Judgment released on: 22 September 2022
Counsel: E. Taggart, counsel for the Public Prosecution Service of Canada L. Hochberg, counsel for the Defendant Aziel Bailey
Reasons for Judgment
RENWICK J.:
Introduction
[1] The Defendant faces one count of possessing more than 30g of cannabis for the purpose of distribution, contrary to s. 9(2) of the Cannabis Act. The prosecutor proceeded by Indictment and the Defendant chose to have a trial in the Ontario Court of Justice.
[2] The trial was brief. The parties filed a “Statement of Admissions,” which became exhibit 1. This narrowed the triable issues considerably. The trial, which only heard from four witnesses, took parts of three days to complete.
[3] Given the concessions made by the Defendant, the sole issue for my determination is whether it is proven beyond a reasonable doubt that the Defendant was in possession of the enormous quantity of cannabis found in the residence he fled on 15 July 2021.
Governing Legal Principles
[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven, by admissible evidence, beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.
[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.
[6] If after considering all of the admissible evidence I am sure that a defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.
[7] This case involves four witnesses and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.
[8] A trier of fact is entitled to accept some, none, or all of what a witness says while testifying. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of their station in life or their role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of the witness’ role, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.
[9] A valuable means of assessing the credibility and reliability of any witness is to examine the consistency between what the witness said while testifying and what the witness has said or written on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
[10] Given that the Defendant testified in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood, to determine whether the allegations are proven beyond a reasonable doubt.
[11] I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31. Justice Paciocco re-constructs the W.(D.) principles into five propositions:
(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;
(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;
(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt, and the Defendant must be acquitted;
(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.
[12] In this case, the evidence of drug possession is entirely circumstantial. In order to be satisfied that the Defendant knew of the presence of the cannabis and had a measure of control over it, beyond a reasonable doubt, I must be satisfied that these are the only reasonable inferences available on the evidence. R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56. In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its high burden.
[13] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.
[14] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and several opportunities during the trial and subsequent to its completion to review my notes, to review the exhibits, and to review parts of the digital audio record of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I had heard until all of the closing submissions were made, and my review of the evidence was complete.
The Evidence and Findings
[15] This case raises issues of credibility and reliability. In saying that, I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond a reasonable doubt. In fact, even if I totally reject a defendant’s evidence, I must acquit him unless I am not left with a reasonable doubt about his guilt based upon the evidence I do accept.
[16] In considering the overall credibility of each witness, I have considered the following areas:
-general character; -plausibility; and -presentation.
As well, I have considered the overall reliability of each witness, in terms of the following:
-ability to observe; -memory; -motive; and -presentation.
[17] Credible witnesses can be mistaken or otherwise inaccurate. Thus, credibility is not a proxy for reliability. R. v. H.C., 2009 ONCA 56 at para. 41.
The Three Police Witnesses
[18] Constable Jatinderpal Johal testified first. He was the first officer who entered the premises at 16 Piggot Mews on 15 July 2021 once the front door was forced open by Constable Brandon Stratton.
[19] Constable Johal testified in a clear and manner of fact way. For the most part, his evidence was not controversial. He was in plain clothes but he wore a black vest with block white letters on the front, indicating “POLICE.” He testified that as soon as he entered, he saw the male who turned out to be the Defendant near the stairs. The Defendant turned and ran away from the officer. Constable Johal told the Defendant to “stop, police,” which had no effect. He pursued the Defendant and eventually followed the Defendant onto the rear balcony and into 14 Piggot Mews. Some of the latter part of this interaction is captured on videotape.
[20] Constable Johal demonstrated how he held his firearm as he entered the dwelling and confronted the Defendant. He told the court that he kept his firearm in front of him, pointed down, in a “ready” position. Constable Johal even demonstrated this. By holding the firearm this way, he said he could easily acquire a target, but he would not be “flashing” anybody. I took this to mean that he did not want the muzzle of his firearm to point at anyone inadvertently. This evidence was not directly challenged in cross-examination.
[21] I accept Constable Johal’s evidence that he did not have the muzzle of his firearm directly pointed at the Defendant at any point, for several reasons. First, the officer testified that this is a “safe” way to be ready to use the firearm. Given that the police would have no way of knowing if anyone was home, nor whether any occupants would be cooperative or not, a great deal of caution would be required in entering the home, dynamically, with unholstered firearms. Second, Constable Johal was certain and did not equivocate when asked about how he held his firearm. Besides, there would be no reason to aim a loaded firearm at a shirtless, easily-recognized unarmed individual. Third, in the video recording taken by officers outside the rear of the residence, none of the three officers who followed the Defendant onto the balcony can be seen pointing a firearm at the Defendant. [4] In fact, the uniformed officer on the ground outside the rear of the residence also appears to have his hand on or near his firearm while it remains at his hip and possibly holstered.
[22] I have no concerns about the credibility or reliability of Constable Johal respecting his actions and specifically how he held his firearm when he confronted the Defendant. Constable Johal was a balanced witness. He was quick to admit that his hands possibly blocked the front of his vest where the word, “police” appears. Constable Johal’s evidence appeared truthful and unembellished and I accept it.
[23] Sergeant Geoffrey Holmes authenticated a video recording taken from the rear of the residence, where police waited during the initial execution of the search warrant. The video became exhibit 2. This officer had an excellent recollection of events. He testified as the commander for this search warrant that most of the officers wore police uniforms rather than plain clothes. [5] His memories of the Defendant going back into 16 Piggot Mews before his arrest, the fact that the Defendant was bare foot, and that a cell phone was in the primary bedroom charging were accurate and undisputed. I accept his evidence in all respects, including that the majority of officers on scene were in full police uniform when they entered 16 Piggot Mews.
[24] Constable Brandon Stratton testified that he used the ram to force open the door to 16 Piggot Mews after a lack of response to the knocking and announcements “police, search warrant” made by Constable Jeff Ferguson. He fairly conceded as one of the search officers that none of the cannabis or other drugs found were in plain view in the residence. As well, the officer agreed that keys to the residence were not recovered from the Defendant. The fact that his evidence was balanced imbued this witness’ testimony with an imprint of reliability. Constable Stratton’s evidence was not challenged and it is wholly accepted.
The Photographic Evidence
[25] Video recordings and photographs were introduced by the prosecution. These were uncontested in terms of their admissibility, the accuracy of their contents, or the process of recording the scene of the alleged offence (there were no suggestions made that the police had manipulated either the recordings or the observations they memorialized). At para. 18 of exhibit 1, the agreed facts admit, “They accurately depict the events which took place and have not been altered.”
[26] From the video evidence, I find as a fact that the Defendant did not intend to cooperate with the police as he exited the rear of 16 Piggot Mews. I find that he wanted to escape from the police as he closed the patio door, he looked towards 14 Piggot Mews, then he mounted the railing and he almost jumped off of the second story balcony. It was not until outside officers yelled “Police, stop. Stop where you are,” that the Defendant changed course. Although the Defendant was shirtless and barefoot, he appeared calm and calculating. In considering the Defendant’s movements and apparent observations, I find that the Defendant saw his sister and/or other police officers inside 14 Piggot Mews before he attempted to jump off the balcony. [6]
The Testimony of the Defendant
[27] The Defendant testified about the events that brought him before the court. At the outset, I will note that the Defendant is instantly likeable, articulate, and well educated. He appeared in a suit in court and he was well groomed and polite. Other than the content of his evidence, he presented well. For the reasons that follow, I disagree that the Defendant was credible and reliable as a witness.
[28] First, I do not accept that the Defendant thought that there might not be anyone occupying 16 Piggot Mews so he snuck over in the early hours of 15 July 2021 from his other brothers’ home at 14 Piggot Mews. It defies credulity that he would not knock on the front door of 16 Piggot Mews before entering the home of his brother’s tenant(s) after 1:00 am, in the dark. This is all the more unlikely given the Defendant’s professed estrangement with Prince, who owned 16 Piggot Mews. The narrative given to explain the Defendant’s presence in the home in the hours leading to the police discovery of a massive cache of cannabis is highly implausible and not worthy of belief.
[29] Moreover, I do not accept that the back patio door of 16 Piggot Mews was left unlocked when the home was apparently unoccupied while it contained cannabis valued at between $56,508 and $282,540 (depending on the quantities/weights to be sold). The Defendant did not call any witnesses to support his version of events for why he ended up sleeping at 16 Piggot Mews. He claims that he was planning to leave at “maybe 6:00 am” so that his sister could drive him home before going to her work, but it remains unexplained why he was still apparently asleep at 6:33 am. His story is incredible and I do not accept it.
[30] I would note that the Defendant’s current and expired passports were found at 14 Piggot Mews, which caused me to doubt that he usually resides with his Mother and sister in Ajax. Both Piggot Mews residences had over 20 kg of drugs within them. The wooden partition on the back patio between 14 and 16 Piggot Mews has been altered to allow occupants to move freely between the homes. It is unlikely that this escape portal, the presence of an inordinate amount of drugs in both homes, the Defendant’s passports at 14 Piggot Mews, and the Defendant’s presence at the other adjoining residence is one huge and unfortunate coincidence. It is much more likely that the Defendant is a regular occupant at either 14 or 16 Piggot Mews and several individuals are involved in a cannabis distribution enterprise with the merchandise split between adjoining homes. [7]
[31] Second, I disagree with the Defendant’s testimony that the police were not identifiable once the Defendant came downstairs. The Defendant testified that he did not know that police were at the home when he woke up and headed downstairs. He testified that he went towards the front door after the loud bang to see what was happening. If the Defendant is to be believed he would have had ample opportunity once he descended the stairs and entered the kitchen to see several police officers entering the main level of the home, mere footsteps away, before he turned and ran away from them. The Defendant also claimed that he was startled awake by the knocking on the front door and believed that it might be his estranged brother, Prince. However, despite that premise, he gave no explanation for why he took his satchel but left behind his socks, his shirt, and his cell phone.
[32] It is difficult to know with precision, but there would have been several seconds while the police were yelling “police, search warrant,” before the Defendant would have made his way downstairs, after waking up. I accept that Constable Jeff Ferguson and possibly other officers made it clear to any occupants who they were and their purpose for entering. It would be foolish for the police to force open a residential front door and remain silent. This would invite occupants to perceive the police as illegal intruders, possibly leading to a violent encounter. Instead, I find as a fact that the police were constantly and loudly announcing their presence as they entered the residence. I accept as fact that Constable Johal yelled, “stop, police” to the fleeing Defendant. I reject the Defendant’s testimony that he was so startled by having a gun pointed at him by an unidentifiable intruder that it made more sense to flee rather than to immediately freeze as he was commanded. It is more likely the case that the Defendant had recognized that his pursuers were police officers who would have no reason to shoot him as he ran away.
[33] Even accepting the Defendant’s initial confusion, how did his “[shock]” [8] so quickly transform into fear of the police. It was obvious that the Defendant recognized the police commands as he attempted to jump off the back deck, because he stopped, paused, and even raised his hand(s). But it was equally obvious that the Defendant was not complying with police commands to “stop.” Like a trapped mouse, he moved in several directions to attempt to avoid the police. I do not accept the Defendant’s convenient excuse that his fear of police brutality motivated his movements away from the officers. The Defendant’s actions (closing the back sliding door and mounting the guardrail to jump) completely undermined his claim that he wanted to be near his family (and possible witnesses) when the police pursued him.
[34] Lastly, I completely reject the Defendant’s testimony that he ran toward 14 Piggot Mews to be with his family. The video that captured the event speaks for itself. Until the police told him to stop, it was obvious what was in the Defendant’s mind. He had plainly observed through the broken partition that his sister was attempting to flee police, half naked, from the kitchen next door, and he knew that he could not go there for refuge.
[35] Rejecting the Defendant’s evidence does not lead to a finding a guilt. I must consider whether the evidence I accept proves the allegation, beyond a reasonable doubt.
[36] In this matter, that involves considering whether the lattice of circumstantial evidence leads exclusively and inexorably to an inference of guilt.
Analysis
[37] The Defendant did not produce any paperwork or witness to substantiate the loan he claimed to have obtained the night before the search warrant was executed. I do not accept that the money in his satchel ($4500) was for a juicer for his father’s business. Very few details were given about the juicer or its seller, or why such an expensive purchase would involve cash.
[38] Overall, the Defendant was a poor witness. He concealed his knowledge of the arrival of police and the reason for having fled. He could not provide many details about the juicer or the person with whom he was involved. He gave the same first name (“John”) for the person who apparently gave him a loan and the person selling the juicer. [9] His entire narrative is far-fetched. I did not believe the Defendant.
[39] I accept that the drugs in 16 Piggot Mews were well concealed in bags, boxes, and other means, hidden from plain view. However, I also accept the unchallenged evidence of Constable Stratton that there was a strong odour of cannabis throughout the home. This was a reasonable observation given the presence of over 20 kg of cannabis on the level of the home where the Defendant slept.
[40] To be clear, I find that the Defendant purposefully lied throughout his testimony to conceal his knowledge and minimize his potential liability.
[41] I find that the Defendant fled with the only thing he could carry (his illegal profits), when he realised that the police had entered a home where he likely regularly stayed. He knew why the police were there and what they would find. Despite his professed claims, this is why the Defendant fled and tried to evade his certain arrest.
[42] In considering the Defendant’s flight from police, his satchel and its contents, the Defendant’s subterfuge before the court, the presence of a large amount of drugs in both residences, the smell of cannabis in 16 Piggot Mews, the Defendant’s passports in 14 Piggot Mews, the altered wooden partition between the residences, the Defendant’s repeated and prolonged non-compliance with police commands, and the lack of any corroborating evidence supporting the Defendant’s narrative, I am convinced that the only reasonable explanation accounting for all of the circumstantial evidence in this case is that the Defendant was fully aware of the presence of a significant amount of cannabis in the residence where he slept, he was a principal or a party to the possession of the drugs (for the purpose of distribution), and he maintained exclusive control over the large amounts of cannabis at 16 Piggot Mews in the hours leading up to the execution of the search warrant on 15 July 2021.
Conclusion
[43] Once the Defendant’s evidence is rejected as untrue, no other reasonable inference, besides guilt, can be drawn on the entire circumstantial wall surrounding the Defendant. None has been suggested. [10] None can be imagined.
[44] I have considered all of the evidence adduced during this trial. I am satisfied on all of the admissible evidence beyond a reasonable doubt that the Defendant, for his benefit and possibly others, knowingly possessed over 28 kg of cannabis for the purpose of distribution on 15 July 2021.
Released: 22 September 2022 Justice G. Paul Renwick