Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 07 04 COURT FILE No.: Central West 998 21 9577 & 21 8687

BETWEEN:

HIS MAJESTY THE KING

— AND —

Jeffrey Kumi

Before: Justice J. De Filippis

Heard on: April 17 – 19, 2023 Reasons for Judgment released on: July 4, 2023

Counsel: Mr. D. Clarke......................................................................... counsel for the Federal Crown Mr. P. Harris..................................................................... counsel for the Provincial Crown Mr. J. Couse................................................................................... counsel for the accused

De Filippis, J.:

Introduction

[1] On October 22, 2021, there was a minor collision in rush hour traffic in downtown Hamilton. A person fled on foot from one of the motor vehicles. The police were called and promptly responded. CCTV cameras from local businesses recorded a person discarding objects while running in a nearby alleyway. A firearm and illicit drugs were later recovered from this area. The defendant was arrested in a nearby convenience store. A cell phone was seized as an incident of arrest.

[2] The defendant was charged with the following Criminal Code offences:

• Failure to stop at the scene of an accident (s.320.16);
• Possession of a loaded restricted firearm, without authorization or licence to do so (s. 95(2));
• Possession of a firearm while prohibited (s.117.(3));
• Failure to comply with a term of two release orders that he not possess weapons (s. 145(5)(a));
• Failure to comply with a term of a probation order that he not possess weapons (s.733.1(1));
• Failure to comply with a term of a release order that he not possess drugs referred to in the Controlled Drugs and Substances Act.

[3] The defendant was also charged with these Controlled Drugs and Substances Act offences:

• Possession of fentanyl for the purpose of trafficking (s. 5(2));
• Possession of cocaine for the purpose of trafficking (s. 5(2));

[4] The primary issue in this trial is the identity of the person(s) who fled the motor vehicle and discarded items while running. The Crown claims that the defendant is that person. As part of this claim, the Crown relies on a video clip extracted from the cell phone seized from the defendant. The Defence asserts that the video clip should be excluded from evidence because the police violated the Charter of Rights and Freedoms. In any event, the Defence disputes that identity has been proven. Moreover, the Defence claims that the defendant cannot be linked to the gun or drugs found and that the possession for the purpose of trafficking charges must fail as there is no evidence to establish the quantity of drugs seized.

[5] Among the exhibits filed by the Provincial Crown are these:

• A Firearm Report confirming that the handgun seized by the police in this investigation was manufactured by Smith and Wesson and is an operable restricted firearm;
• An Affidavit confirming that the defendant was not authorized or licensed to possess a firearm;
• An Order dated October 6, 2020 prohibiting the defendant from possession of firearms (etc) for life;
• Copies of two probation orders, in force at the time of these events, each containing a term that the defendant not possess weapons;
• Copies of two release orders, in force at the time of these events, each containing a term that the defendant not possess weapons or illicit drugs.

[6] The Federal Crown filed these exhibits;

• Solemn Declarations by PC Hamilton and PC Bharaj attesting to the chain of continuity of listed exhibit envelopes containing suspected drug substances.
• A Solemn Declaration by PC Janus attesting to the quantity of suspected cocaine and fentanyl seized by the police in this investigation and the chain of continuity of the samples taken by the officer for submission to Health Canada for testing.
• Seven Certificates of Analysis confirming that the suspected drug substances seized by the police in this investigation are, in fact, cocaine and fentanyl.

[7] These exhibits were filed with the consent of the Defence. However, during submissions, one of the exhibits filed by the Federal Crown became the subject of dispute. I will deal with that later in these reasons, but it will be useful to identify it at this time; it is the Solemn Declaration by PC Janus (Exhibit 14 in these proceedings).

The Motor Vehicle Collision and Flight from the Scene

[8] On October 22, 2021, at 3:30 PM, Ms. Brittany Morgan was stuck in “bumper to bumper traffic” in downtown Hamilton. It was a sunny day. She was driving a black Audi. She was “rear-ended by a small white SUV”. Ms. Morgan saw, by means of the rear view and side mirrors, that the driver door of the vehicle that had collided with her was open and someone was moving quickly on foot up the side of her motor vehicle. The person’s hands were full of items. Ms. Morgan moved her motor vehicle to the shoulder of the road and followed the person. When she caught up with him, she rolled down her window and said “hey” and took a photograph with her phone.

[9] Ms. Morgan described the person as a thin black man, about five feet and 10 inches in height. He had corn roll hair, with black clothing, a black hat, with a [COVID] mask on his face. He carried a green/brown camouflage coat draped over a small duffle bag and several “No Frills [grocery store] bags”. When the man saw Ms. Morgan taking a photograph, he said, “oh shit” and kept running. Ms. Morgan chased him on foot for a short time before ending the pursuit. The photograph taken by Ms. Morgan matches her description of the man and his belongings.

[10] Ms. Morgan also took photographs of the damage to her car and that of the one that collided with her. The latter is a white Chevrolet with plate number CVCA 917. In cross-examination, Ms. Morgan conceded that she did not see anyone inside the white car that hit her.

[11] Mr. Steve Dickie is a support worker for Able Living in the area of York Blvd and Pearl Street in Hamilton. His office is on the 6th floor of a building. At “around 3 PM”, he heard a collision and went to his office balcony. He saw a “white van and a black Audi” directly below. Mr. Dickie testified that the white vehicle had collided with the black one and that the air bag had been deployed in the white vehicle. He saw a person open the driver door of the white vehicle “grab things in the car and leave” on foot. He saw the black Audi follow the person and that there appeared to be a conversation between the person and driver of the black car. Mr. Dickie saw the person drop items on the ground as he fled east on York Blvd.

[12] Mr. Dickie testified that he had an unobstructed view of the person who fled the scene of the collision for “a couple of minutes” and, in reference to a google map, noted the route taken by that person. He described the person as a thin black man in his mid to late 30s, black, with black jeans and dark camouflaged jacket and sweater. He was holding many items – garments and bags that he had grabbed from the car and bundled up. Mr. Dickie conceded he did not see the collision and cannot say what had happened before he saw the man leave the driver’s side of the vehicle. He also confirmed that in his statement to the police he said the man’s age was “early 40s or late 30s”. He adopted this at trial.

[13] At the time of these events, Mr. Manjit Singh was an Uber driver. At 3:40 PM he was dispatched to the area of the collision, driving a Toyota Corolla. He saw the damaged white Chevrolet in question. He testified that a person “waived him down” and entered the Uber. He drove to the intersection of York Blvd. and Queen Street. On seeing police cruisers in this area, the person fled the Uber, leaving behind a bag.

[14] Mr. Singh described the person in question as a black man with a hat on. He cannot recall anything else about the person. Mr. Singh gave the police the bag left behind by the man.

The Police Pursuit

[15] Approximately two hours after the motor vehicle collision, PC Kevin Bennett arrived at a business at 103 Queen Street North. This is on the west side of Queen Street and south of York Blvd. He had been dispatched to that location at 5:11 PM because an employee of the business reported finding a gun. The officer spoke to the employee in the rear of the business. This is an enclosed area with a wooden fence on the north side. Within the enclosure the officer saw a garbage bin and miscellaneous equipment from local businesses. In plain view, on the ground, between the wooden fence and the garbage bin, was a black gun.

[16] PC Bennett proved the gun safe; that is, he removed the magazine cartridge and racked the gun to confirm there was not a round in the chamber. He noted that there were several rounds in the cartridge. Photographs of the gun are before me at this trial. The officer described it as a relatively new Smith and Wesson, in good condition, and used by military police. The chain of continuity with respect to the firearm is not contested by the Defence.

[17] PC Bennett also received a white bag from PC Davies. This bag contained several baggies with suspected drugs. The officer sent this to the central police station for weighing and to take samples for analysis. The chain of continuity with respect to the drugs is not contested by the Defence.

[18] Several days later, on October 26, PC Bennett filed “A Report to Justice”. Among the items listed in the Report is the gun he had seized, and a cell phone seized by another officer from the defendant on his arrest. At the same time, he applied for a warrant to search the cell phone for its data. The officer testified that the purpose of the Report was to request judicial authority to keep the seized items “to be processed for further evidence”.

[19] In cross-examination, counsel referred the officer to a passage in the Search Warrant for the cell phone which provided that the items searched, or a report about those items, must be brought to a Justice of the Peace. The officer conceded he did not do this as he had filed such a report on initially seizing the phone. He added that he has never filed a subsequent Report to Justice in such circumstances. Counsel also referred the officer to a paragraph in the Search Warrant that granted authority to extract the data from the phone “so long as police have lawful authority to detain those things”. In re-examination, PC Bennett explained that he proceeded on the understanding that once the initial Report to Justice was accepted, it granted him lawful possession of the items listed therein.

[20] PC Timothy Davies was dispatched to a “fail to remain call” and arrived at 3:47 PM. He saw a damaged white Chevrolet Orlando hatchback and took a statement from Ms. Brittany Morgan. He searched the white Chevrolet and among the items he found was a digital scale. At 6 PM, having learned that a gun had been found at 103 Queen St, he went to that area to request and review CCTV cameras from local businesses. A video record of was played to the Court. At 3:49 PM, a thin black man, wearing black pants and a green/brown camouflage coat, and black hat, with a COVID mask on his chin, is captured running in the alley with a wooden fence on one side. He throws an object over the fence. He also dropped items on the ground, including a white bag. The man then ran north as he is followed by a police cruiser.

[21] PC Davies testified that the object thrown over the wooden fence resembled a firearm. In cross-examination, the officer confirmed that his contemporaneous notes of the event do not mention a firearm being thrown over the fence; rather, he noted that it was a black object. I have reviewed the video several times. The black object looks like a hand gun.

The Arrest of the Defendant

[22] PC Tomasz Majewski was informed that a man had fled the scene of a motor vehicle collision and had entered a Toyota Corolla. At 3:50 PM, the officer saw that vehicle at the intersection of York Blvd and Queen Street. He activated the lights and siren on his marked cruiser to initiate a traffic stop. When the Corolla stopped in the middle of the intersection at York, the passenger side door opened and a man matching the description previously given of the man who left the scene of a collision, exited, and fled on foot. The officer described the man as black, in his 30s, wearing a dark green/brown camouflage jacket, baggy pants, and black baseball hat. PC Majewski saw this man run into an alleyway that intersects with York Blvd and enter Salvages Convenience Store at alleyway and York. The officer followed and arrested that man for failure to remain at the scene of an accident. That man is the defendant.

[23] Among the items seized from the defendant’s pocket pursuant to a search incident to arrest were two key fobs. The officer also seized a cell phone he saw the defendant place on a shelf in the store immediately before his arrest. This is the cell phone PC Bennett obtained a Search Warrant for. Soon after, PC Majewski returned to the scene of the collision and confirmed that one of the key fobs seized from the defendant was able to lock and unlock the doors to the damaged white Chevrolet that had collided with Mr. Morgan’s black Audi.

Search of the Defendant’s Cell Phone

[24] It is agreed that the warrant to search the defendant’s phone, obtained by PC Bennett, executed by PC Gagnon on November 23, 2021; that is, the phone was removed from the police exhibit locker and turned on. However, the device could not be accessed as it was password protected. On August 16, 2022, the same officer was able to extract information from the device with a specialized software program.

[25] PC Christina Pigeon is a forensic services assistant with the Hamilton Police. As part of her duties in this investigation, she preserved a video clip from the phone seized from the defendant. The clip shows a person talking to himself as he walks around a residential dwelling. The person is a thin black man, in black clothing and black hat. He appears to be alone as he films and narrates. On several occasions he can be seen holding a gun in his other hand. It is a black handgun. At one point he passes a mirror and is seen in the reflection, holding the phone to his mouth in one hand and a gun in the other. Still images of the mirror scene and the gun in hand are before me at this trial, along with the video clip. As previously noted, admissibility is challenged on Charter grounds.

Expert Opinion About the Drugs

[26] PC Matthew Duglaie was tendered to provide expert evidence about the sale, use, and distribution of fentanyl and cocaine. His qualification to do so was conceded by the Defence. He explained why, in his opinion, the quantity of drugs seized in this investigation must have been possessed for the purposed of trafficking. Having regard to the conclusion I have reached about the Solemn Declaration by PC Janus, I need not dwell on the testimony of PC Duglaie. In the result, his opinion is irrelevant to this trial.

[27] On consent the Defence filed a document, printed from the internet, that shows a replica air gun; specifically, the Smith and Wesson M & P 40 Blowback BB Gun. The photograph of this gun and that seized by police is virtually identical – except, that the gun seized in this case was not a replica; it had a magazine with rounds in it.

Submissions About the Charter Issue

[28] PC Bennett filed an initial Report to Justice and applied for a Search Warrant respecting the defendant’s iPhone on October 26, 2021. The warrant issued on October 28 and executed on November 5, 2021. The video clip of the man with a gun was later extracted. The police did not file a second Report to Justice. The Defence claims that this is contrary to the Criminal Code and amounts to a violation of section 8 of the Charter.

[29] Section 489.1 of the Code provides that:

(1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(1) (i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(2) (ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance

[30] Section 490 states that:

(1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

[31] The Defence relies on R v Garcia-Machado 2015 ONCA 569, R v Merritt 2017 ONSC 5245 and R v Mitchell 2019 ONSC 5040. Merritt deals with the same issue raised in the present case and is representative of the other two decisions.

[32] In R. v. Merritt, Dawson J. held as follows at paras. 244-45:

The [Crown] argues that no additional report to a justice was required because the property itself was already being supervised by the court pursuant to the earlier detention order. I would point out, however, that under the original s. 490 order the court was supervising the detention of the physical items. As no return was made in relation to the execution of the October 18 warrant the court was not supervising the detention of the data gleaned from the computers and USB keys.

As was subsequently held by the Supreme Court of Canada in Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as Vu and R. v. Morelli, 2010 SCC 8, [201O] l S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013 warrant constitutes a violation of s. 8 of the Charter.

[33] The Crown argues that the cases relied upon by the Defence have been overtaken by a subsequent decision by the Court of Appeal for Ontario. As such, a second Report to Justice following the examination and extraction of data from the defendant’s iPhone is unnecessary and the failure to file a second report did not breach his section 8 Charter rights. I agree.

[34] In R v Nurse, 2019 ONCA 260, the Court of Appeal for Ontario held that no section 8 breach occurred where police seized a computer while executing a warrant that authorized analysis of the device, but then analyzed the computer years later using updated software. The Court rejected an argument by analogy to non-digital search scenarios: a second analysis of the data that had already been extracted was not a further “search” of a “place” and did not require another warrant. The Court rejected the argument that the extraction of new information from items previously seized gave rise to new police obligations with respect to additional “things” learned by law enforcement during data analysis:

[35] In R v Robinson, 2021 ONSC 2446, Akhtar J applied the reasoning in Nurse to conclude that when police seize a phone and lawfully extract data pursuant to a warrant, a second report to justice is not required for the extracted data. Akhtar J further stated that cases commonly cited for the proposition that there is a distinction between the item seized and data gleaned therefrom, such as R v Merritt, 2017 ONSC 1508 have been overtaken by the Court of Appeal’s holding in Nurse. At paragraphs 22 – 27, Justice Akhtar held as follows:

As the Crown correctly argues the physical item seized is the "thing" specified in s. 489.1(1), not the information that it later reveals. In this case, the item was the phone. I can find no reason to justify the separation of the phone from the data contained therein.

Although the applicants rely on prior case law from this court, such as R. v. Otto, 2019 ONSC 2514, and R. v. D'Souza, 2016 ONSC 5855, it is apparent that the court in those cases found a second report was required on the basis of a Crown concession. It is also noteworthy that notwithstanding that concession, the court in D'Souza, at para. 168, declined to find a Charter breach.

It is also unclear what the filing of a second report would achieve. As described, the Report to Justice process is a way of ensuring supervision of the seized item and its return to the owner when it is no longer needed. I ask, rhetorically, what would the justice do with the extracted data?

The applicants rely on R. v. Merritt, 2017 ONSC 1508, as authority for the proposition that there is a distinction between the item seized and data gleaned from that device. I acknowledge that in Merritt the court found that a second report was required for data obtained from a USB key that had been seized and that the court in Neill followed that decision. However, in declining to exclude the evidence in Neill, Coroza J. made the following observation, at para. 99:

I acknowledge that the law remains unsettled as to whether, in the case of a cell phone or a computer, a peace officer must file a Report to Justice outlining every piece of data found on the device seized. Indeed, there is very little authority dealing with this issue. Indeed, I acknowledge that there is a strong argument that the regime was not meant for searches of data. It is debatable whether Cst. Martin should have or ought to have known that he was required to submit a report to a justice regarding the seizure of the items, photographs and images that had been seized.

I agree with the Crown that these cases have been overtaken by the Court of Appeal for Ontario's holding in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 132-138, that Blackberries and other electronic devices were not a "place" to be searched and that a second analysis of data extracted from the device did not constitute a new "search" but the same search authorised by the warrant that allowed seizure of the device.

Here, the data obtained from the phone was not a "thing" and did not require a second Report to Justice.

[36] Assuming Robinson is wrongly decided, and the police violated the defendant’s s. 8 Charter rights, I would not exclude the evidence of the video clip. The governing provision, s. 24(2), is not aimed at punishing the police or compensating a defendant, but rather at systemic concerns. Also, the question is not whether the evidence should be excluded but whether the administration of justice would be brought into disrepute by its admission. The application of this section involves three inquiries: R v Grant 2009 SCC 32.

[49] The first matter to consider is the seriousness of the Charter infringing state conduct. This is a fact specific inquiry. It recognizes that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. On the other hand, the case of admission of evidence gathered through a violation committed in good faith may not adversely affect the administration of justice. The second inquiry is focussed on the impact of the breach on the protected interests of the defendant. The greater the intrusion into privacy, bodily integrity and human dignity, the more pressing is the need to exclude the evidence in question. This may not be the case where the impact on the defendant is fleeting, transient or technical. The third question concerns the public interest in a trial on the merits. In this regard, the reliability of the evidence is the key factor to consider.

[37] Applying the three step Grant analysis, it cannot be said that the admission of the evidence would bring the administration of justice into disrepute. The conflicting case law on point mitigates the seriousness of the state misconduct. Moreover, the impact on the defendant’s privacy interest is lessened by the fact that this interest was already suborned to that of law enforcement when the Search Warrant – the validity of which is not contested – was issued. The Search Warrant contemplated the search of data. Had a second Report to Justice been filed, it would inevitably have led to the authority to detain the data, like the device itself. I will explain why I find that this video clip depicts the defendant. It is reliable and important evidence of a serious offence. These considerations mean that the evidence should not be excluded.

Submissions About Other Trial Issues

[38] Defence counsel concedes that if I find that the defendant had possession of the gun found by police in this case that he is guilty of all the firearm charges and related breaches. Counsel accepts that a person failed to remain at the scene of the collision between the white Chevrolet and black Audi but submits that the Crown has failed to prove that the defendant was this person. In this regard, it is pointed out that Ms. Morgan did could not say that the man who ran from the scene, whoever he may be, was the driver of the white car and that although Mr. Dickie saw a person in the driver’s seat of that car collecting items after the collision, he did not see the collision and cannot say he was in the driver’s seat at that time. Counsel adds that it cannot be concluded that this person, whoever s/he may be, was the one who is captured on camera dropping items, including a white bag as he fled or threw the object over the wooden fence, or indeed, that this object was the gun later found. In this regard, counsel notes that the gun and white bag were found a couple of hours after the person ran through the alleyway in question.

[39] Defence counsel suggests that the quality of the images from the undated video clip from the defendant’s phone “is not great” and that I should be cautious in concluding that man is the defendant, especially given the “danger of cross-racial identification”. Counsel adds that I cannot conclude the gun held by the man is the gun in question in this case.

[40] In offering these submissions the Defence does not suggest that the defendant’s guilt is not an available inference; but that it is not the only inference and, thus, the Crown has not met its burden of proof. In any event, the Defence asserts that there cannot be a finding of guilt with respect to the charges of possession of cocaine and fentanyl for the purpose of trafficking. That is, even if it is proven that the defendant is the person who dropped the white bag in the alleyway, containing those drugs, there is no evidence of the quantity of cocaine and fentanyl. As previously noted, the only evidence about the quantity of cocaine and fentanyl in this case comes from the Solemn Declaration by PC Janus. The Defence argues that this document cannot be used to prove quantity, only the chain of continuity.

[41] The Provincial Crown began his submissions with the arrest of the defendant. He is a thin black man, in his 30s, who had a black hat and was wearing a green/brown camouflage coat. This is the man depicted in the photograph taken by Ms. Morgan (carrying the coat) as he fled from the scene of the car accident. A man matching this description fled on two other occasions; from the police cruiser in the alley way, and from the Uber when a police cruiser imitated a traffic stop. The Crown argues that it is always the same person. The only inference to be drawn from the testimony of Ms. Morgan and Mr. Dickie is that that man was the driver of the white car. The defendant was arrested in possession of a key fob for that car.

[42] The Crown pointed out that the car accident, in itself, was not a crime and submits that the reason the defendant fled from the scene is explained by his action in the alley way in throwing the gun over the wooden fence and dropping the bag with the illicit drugs. Counsel adds that the video clip from the defendant’s phone is supporting evidence of his guilt and that I can safely identify him and the gun in the video and still images.

[43] The Federal Crown adopted the submissions of the Provincial Crown and addressed the dispute about proof of quantity of the drugs. Counsel argues that the Solemn Declaration provides for proof of continuity and should not be divorced from the nature and quantity of the substance. Moreover, this is what he understood was conceded by the Defence Counsel when he consented to filing the document. In the alternative, the Crown asks that he be allowed to re-open his case to prove the amount in question.

Conclusions

[44] The Crown must prove its case beyond a reasonable doubt. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence: R v Villaroman 2016 SCC 33. If the Defence calls evidence there must be an acquittal if the testimony is believed or the testimony is not believed, but nevertheless raises such a doubt. An acquittal will follow even if the Defence evidence is not believed and does not leave a doubt, based upon reason, but the remaining evidence fails to prove that the defendant is guilty: R v W.D. 1991 SCC 93. In determining if the Crown has discharged its burden of proof, all evidence may be considered. In this regard, I note that this case does not raise significant issues of credibility and reliability; none of the witnesses were seriously challenged and their evidence is not otherwise undermined. I have confidence in their truth and accuracy.

[45] The following matters are not controversial: A person left the scene of an accident; A person ran into a nearby alleyway, dropped items on the ground and threw an object over a wooden fence as a police cruiser pursued; A person entered an Uber in that area and abruptly fled that vehicle when a police officer initiated a traffic stop; Immediately after that person entered a convenience store nearby; The defendant was found in that convenience store; The defendant was in possession of a key fob that operated the doors to the white Chevrolet involved in the accident; An iPhone in the possession of the defendant was seized and found to contain a video clip of a man with a gun; A loaded restricted firearm was found by police on the other side of the wooden fence. The white bag found by police in the alley way outside that wooden fence contained cocaine and fentanyl.

[46] Twenty minutes elapsed from the time of the collision and the arrest of the defendant. All events occurred within a small geographical area. The driver of the Uber could only recall that the person was a black man. However, it is clear from the testimony given by PC Majewski that this man is the person he followed into the convenience store and arrested. The description of the person provided by Ms. Morgan, Mr. Dickie, and PC Majewski, as well as the Morgan photographs and CCTV images are consistent; a thin black man. The Morgan photographs also show the man had corn roll hair. The defendant before me is a thin black man with corn roll hair. The depiction and description of the clothing is also consistent; a black hat, black clothing, and a green/brown camouflage coat. Significantly, the defendant had a key fob that operated the white Chevrolet. Having regard to all the evidence, it is impossible to believe that the person seen fleeing the accident is anyone other than the defendant. I find that he is also the person captured on camera in the alley way and followed from the Uber to the convenience store. The proximity of time and space means it cannot have been more than one person. To have a doubt about this would not accord with reason or common sense.

[47] Why would the defendant run from the accident? No offence had been committed by the collision. Nobody was injured. I accept the argument by the Federal and Provincial Crowns that the defendant fled the scene of a minor accident and continued to flee as police pursued him because he was in possession of contraband. He threw the gun over the wooden fence. He dropped the white bag containing fentanyl and cocaine.

[48] The video clip of a man filming himself and rooms in a house as he narrates confirms my conclusion about the defendant’s guilt. The man looks very much like the defendant, and he holds a gun that looks very much like the one seized in this case. I am persuaded that it is, in fact, the defendant and gun in question because the video was extracted from an iPhone seized from him. The video is a selfie. I do not accept the Defence suggestion that I cannot conclude the man is the defendant. The quality of the images is good. Moreover, I am not troubled the suggestion the gun may be a replica. This is simply speculation. Although I do not know the time or place of the video clip, it is certain that prior to his arrest, the defendant had possession of a black gun.

[49] The white bag was seized by PC Davies and given to PC Bennett. This bag was transferred to the central police station where samples were taken and sent for analysis. The Defence concedes the chain of continuity, and, in any event, it is established by the s. 53 Solemn Declarations. The Certificates of Analysis confirm that the samples tested positive as cocaine and fentanyl. However, there is no evidence that the defendant possessed these drugs for the purpose of trafficking.

[50] The purpose of the possession, in this case, is provable by the expert opinion with respect to the quantity of drugs seized. I accept the Defence assertion that the s. 53 Solemn Declaration cannot be used to prove the quantity of drugs. That seems evident on a plain reading of the section. This issue arose in R v Knott 2014 ONSC 5490 where the Crown, missing the seizing officer on the day of trial, sought to prove manner and location of the search by that officer’s s. 53 Solemn Declaration. Justice Libman held that this takes the section too far. I agree, and I reject that analogous argument by the Federal Crown in the present case. The section 53 affidavit provides the Crown with a short cut to prove continuity and supports other evidence with respect to nature and quantity. In itself, however, the affidavit cannot be used to prove quantity.

[51] I do not accept the additional argument by the Federal Crown that the Defence, in consenting to the filing of the s. 53 affidavit, conceded the admissibility of all statements contained therein. Finally, while I accept the Federal Crown’s assertion that he was confused about what was being conceded, I would not grant request to re-open its case to call viva voce evidence on point. Such confusion was not caused by the Defence. The evidence is in. I have heard submissions. The trial is over, but for my decision.

Result

[52] The defendant is found guilty of these offences:

• Failure to stop at the scene of an accident;
• Possession of a loaded restricted firearm;
• Possession of a firearm while prohibited;
• Failure to comply with a term of two release orders that he not possess weapons– two counts;
• Failure to comply with a term of a probation order that he not possess weapons;
• Failure to comply with a term of a release order that he not possess drugs referred to in the Controlled Drugs and Substances Act.
• The included offence of possession of fentanyl;
• The included offence of possession of cocaine.

Released: July 4, 2023 Signed: Justice J. De Filippis