Ontario Court of Justice

Date: February 6, 2023 Court File No.: 21-3128, 21-3129

Between:

HIS MAJESTY THE KING

— AND —

RAVEN JOSEPH-SOROKA AND ASHLEY WILSON

Before: Justice Robert S. Gee

Heard on: January 4, 2023 Reasons for Judgment released on: February 6, 2023

Counsel: T. Mimnagh, counsel for the Crown E. Angevine, counsel for the accused Raven Joseph-Soroka G. Eliany, counsel for the accused Ashley Wilson

Gee J.:

Introduction

[1] The two accused were apprehended by members of the Six Nations Police in a motor vehicle located on the Mississauga of the Credit Reserve on August 25, 2021. Upon searching the accused and the motor vehicle, police located fentanyl, cash, and other items the Crown alleges were indicative of trafficking. As a result, both accused were charged with Possession for the Purpose of Trafficking in fentanyl contrary to s. 5(2) of the CDSA and possession of property obtained by crime under $5000.00.

[2] The trial of the accused was heard on January 4, 2023. Three witnesses, all police officers, testified for the Crown. The accused did not testify, nor did they call any other evidence.

[3] As are most possession for the purpose cases, the Crown’s case is circumstantial. The accused have challenged the inferences available from the evidence called and argue that the Crown has failed to prove the charges beyond a reasonable doubt. The balance of the reasons will explain why I have found the Crown has proven the charges beyond a reasonable doubt and findings of guilt will be made on both charges for both accused.

Facts

[4] The facts in this case are not in dispute. It is the inferences available from those facts that is contested.

[5] On August 25, 2021, an officer of the Six Nations Police was in the process of preparing an Information to Obtain a search warrant for the residence shared by the two accused at 3 Pine Crescent on the Six Nations Reserve. While that was being prepared, other officers were conducting surveillance of the residence. At about 12:40 pm, the accused left the residence in a motor vehicle. Mr. Joseph-Soroka was driving and Ms. Wilson was in the front passenger seat.

[6] The police followed the vehicle and conducted mobile surveillance on it and the accused. From 3 Pine Crescent it went to 982 4th Line Rd. There, an unknown male entered the car and it then drove to the Bank of Montreal at 4th Line and Chiefswood Road. It parked in the parking lot and Ms. Wilson got out and let the unknown male get out who then went into the bank. By 1:01 pm, the male was out of the bank and back into the car.

[7] They then drove directly back to 982 4th Line Rd. where the male got out and went back in the residence. The accused then depart and are back at their residence at 3 Pine Crescent by 1:13 pm. At 1:23 pm, the two accused leave again in the vehicle and go to 1750 Seneca Rd., arriving three minutes later at 1:26 pm. At this address, an unknown female comes to the passenger side window of the car where Ms. Wilson was seated. Approximately seven minutes later at 1:33 pm, the accused depart.

[8] Officer Robert Monteforte testified he has been a Six Nations Police Officer for approximately three years. Prior to his employment with Six Nations Police, he had been a police officer in Hamilton since 2012. Officer Monteforte lives on Seneca Road and is familiar with 1750 Seneca Rd. where the accused met the unknown female. He stated the residence is known for drug activity. He has arrested people who possessed fentanyl who resided at this address. As well, the Six Nations Police have attended this residence for calls for potential overdoses.

[9] After leaving 1750 Seneca Road, the accused went to a Tim Horton’s in Hagersville, arriving at 1:50 pm. They went through the drive-through and then parked. They stayed there until leaving at 2:08 pm. They drove from there directly across the road and parked in an LCBO parking lot. At 2:21 they left that parking lot and drove to Toby’s Gas Bar on Mississauga Road in New Credit. They pulled in and drove to an area immediately to the west of the gas bar in what was described as a gravel turnaround area. They did not go into the gas bar and remained in the car.

[10] Officer Monteforte continued surveillance and observed Sierra Maracle-Sault and an unknown male walking eastbound on Mississauga Road toward the gas bar. Officer Monteforte testified that Ms. Maracle-Sault is known to him as a fentanyl user. He has personally arrested her before and the Six Nations Police have been involved in occurrences at drug houses where she has been. He watched her and the male walking along Mississauga Road toward the gas bar for about eight minutes carrying various bags that looked to Office Monteforte as if it could be all their belongings. At 2:38 they got to the gas bar and walked directly to where the accused were parked and approached the passenger side of the vehicle.

[11] At this time the police made the decision to arrest the accused. It was the police belief the accused had engaged in two earlier drug transactions, and they were about to engage in another. Several police vehicles approached and at the time Ms. Maracle-Sault was at the passenger side window of the car where Ms. Wilson was seated.

[12] The two accused were arrested and removed from the vehicle. On the driver’s seat where Mr. Joseph-Soroka had been, was a small baggie with marijuana leaves on it that contained what was suspected to be purple fentanyl. On the floor of the front passenger side, a blue case was located. Inside the case was a digital scale with white residue on it. Also inside, was a cell phone which came on when picked up. The home screen was a picture of Ms. Wilson. A black purse was also located on the front passenger side floor. Inside this purse was another blue container, this one with marijuana leaves on it. When opened it contained numerous small baggies with marijuana leaves on them, just like the one located on the driver’s seat that contained the suspected purple fentanyl. A zip lock baggie that also contained suspected purple fentanyl was found inside the container found in the purse. Additional baggies of what was suspected to be purple fentanyl were also located in the purse as was $1,769.00 in Canadian currency and $52.00 of United States currency.

[13] The substance found on the driver’s seat weighed .3 grams. The substance from inside the purse weighed 3.3 grams. Inside a sunglasses case was 9.6 grams and a further 1.9 grams of what the police suspected at the time to be purple fentanyl. In total, the suspected fentanyl seized weighed 15.1 grams. It was analyzed by Health Canada and was determined to be a fentanyl and benzodiazepine mix (hereafter referred to as “the fentanyl”).

Issues

[14] The Crown position for Ms. Wilson was that she was in possession of the fentanyl found in the car and she possessed it for the purpose of trafficking. The issue for Mr. Joseph-Soroka is whether his acts that day make him a party to Ms. Wilson’s possession for the purpose of the fentanyl pursuant to s. 21 of the Criminal Code.

[15] The last issue relates to the charge of possession of property under $5000.00. The property is the cash found in the purse and whether it was obtained through criminal means, that is drug trafficking.

Analysis

[16] Dealing with Ms. Wilson, the first issue is whether the Crown has proven she was in possession of the fentanyl. Ms. Wilson did not dispute this much, and for good reason. The evidence pointing to Ms. Wilson being in possession is strong and clear. During the arrest and all observations of her by police, she was sitting in the passenger seat of the car. The fentanyl was located on the driver’s seat, and in various areas of the floor of the front passenger side of the vehicle. This put her in close proximity to where it was found. Additionally, fentanyl was found inside the purse located where she was sitting and the cell phone with her picture on the home screen was also located in this area. Based on the totality of the circumstances, I am satisfied Ms. Wilson was in possession of the fentanyl.

[17] The next issue is whether her possession of the fentanyl was for the purpose of trafficking. The evidence relied on to prove this, is entirely circumstantial. As such, in order to secure a conviction, “the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative.” See: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paragraph 41.

[18] The Supreme Court also said in Villaroman at par 35 that: “If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.” In the same paragraph the Court also affirmed that these other reasonable inferences do not have to be based on the evidence, they can also be based on the lack of evidence.

[19] However, the court in Villaroman in paragraphs 37 and 38 went on to caution that:

37. ..."Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38. Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[20] In this case, the evidence that would support the inference that Ms. Wilson possessed the fentanyl for trafficking is as follows:

• the brief encounter with the unknown male that the accused picked up at 982 4th line Rd., drove to the bank, and then directly back to 982 4th Line Rd., without either accused entering the residence or leaving their car;
• the brief stop the accused made at 1750 Seneca Rd., a residence associated with drug activity, where they met briefly with an unknown female at the passenger door to the car, again without either accused leaving the car;
• the attendance at the gas bar without going inside or purchasing gas, parking off to the side of the business and then meeting there with Ms. Maracle-Sault a known drug user;
• the .3 grams of fentanyl found on the driver’s seat of the car which the Crown argues was about to be trafficked to Ms. Maracle-Sault;
• the numerous small baggies located in the purse that were like the one found on the driver’s seat;
• the scale;
• the cash; and
• the significant quantity of fentanyl.

[21] The Crown position is when these circumstances are viewed cumulatively, the only reasonable inference, to the exclusion of all other reasonable inferences, is that Ms. Wilson engaged in two drug transactions, and one interrupted drug transaction that day, so when she was arrested, the fentanyl she was found with, was possessed by her for the purpose of further trafficking.

[22] Counsel for Ms. Wilson, as does counsel for Mr. Joseph-Soroka, argued that the driving the unknown male to the bank, the meeting with the unknown female outside the known drug house, and the interrupted meeting with Ms. Maracle-Sault near the gas bar, all could have other, non-drug trafficking related explanations. Both counsel argue that the trip to the bank and the meeting with Ms. Maracle-Sault could reasonably be explained by the accused agreeing to do favours for friends. They could have been giving a friend, who was without a car, a ride to the bank. They also could have just agreed to give Ms. Maracle-Sault a ride since she lived near the gas bar and seemed to be carrying all her personal belongings. As well, no hand to hand transactions were observed by the police during their surveillance.

[23] They argue that these are other reasonable explanations for these three encounters, that are not necessarily indicative of drug trafficking. If these encounters can reasonably be explained as non-drug trafficking activities, then the balance of the evidence is incapable of supporting an inference the fentanyl was possessed for the purpose of trafficking.

[24] However, I disagree. As noted in Villaroman above, the line between plausible theory and speculation can be difficult to demarcate. In this case though, I find the other reasonable possibilities as urged by the accused, fall on the speculation side of the line.

[25] The accused are urging me to look at these three encounters in isolation. That is not a proper manner to assess a circumstantial case. I am to look at the evidence as a whole and determine if, when viewed in this manner, the circumstantial evidence excludes other reasonable alternatives (see: R. v. Aslami, 2021 ONCA 249, paragraph 49 and R. v. Lights, 2020 ONCA 128, at paragraph 39). In this case, when all the circumstantial evidence is viewed as a whole, it does exclude the other alternatives put forward.

[26] The fentanyl and other evidence found in the vehicle add context to the three encounters. As noted above, Ms. Wilson was possessing a significant quantity of fentanyl. There were several other indicia of trafficking present, and I agree with the Crown, in all the circumstances, the .3 grams found on the driver’s seat was about to be trafficked to Ms. Maracle-Sault. With all this evidence, the meetings at the known drug house and the meeting with Ms. Maracle-Sault, a known drug user, and the other short duration meeting and drive to the bank in the circumstances in which they took place, make the inference they were engaged in drug trafficking reasonable and the other explanations put forth for the encounters unreasonable. As well, given what was located in the car, even without the three encounters, the evidence for possession for the purpose is strong.

[27] Even though the police did not observe any hand to hand transactions, this does not change the reasonableness of the inferences to be drawn from these encounters. The person they drove to the bank was inside the car for much of the time so it is not surprising no hand to hand was able to be seen. Also, the encounter with Ms. Maracle-Sault as mentioned was interrupted just moments after she arrived at the car before any hand to hand could occur. Last, dealing with the encounter with the unknown female at 1750 Seneca Rd., it has to be remembered the police were conducting mobile surveillance from different police vehicles. They were moving and trying to remain unnoticed by the accused. In these circumstances, when they do not have advanced knowledge where the accused would be going, it is also not surprising they were not able to observe something like a brief hand to hand transaction. As a result, this so called lack of evidence, in the circumstances of this case, does not detract from the inference the Crown advances, nor does it make the alternate inference the accused put forward any more reasonable.

[28] In addition, the other explanations have to be viewed “logically and in light of human experience” (Villaroman, paragraph 38 above). When viewed in the context of the evidence as a whole, the alternate inferences advanced by the accused for the three encounters are illogical. According to the police surveillance, Ms. Wilson and Mr. Joseph-Soroka, left for these three encounters from their residence. If they were just heading out to run errands and do favours for friends, logic would dictate, they would leave their fentanyl, scale, baggies, and other items that could be viewed as indicative of drug trafficking at home where they would be more safe and secure. They would not take all those items with them, with the inherent risk they might get caught with it, which would inevitably lead to them facing the very serious charges they are now.

[29] It is for these reasons that I find the alternative theories put forth by the defence are not reasonable. As such, based on the entirety of the evidence, I am satisfied that the first two encounters the accused had that day were instances of drug transactions and the third encounter was about to be another one until it was interrupted by the police. As such I am satisfied the Crown has proven that Ms. Wilson possessed the fentanyl for the purpose of trafficking. It is the only reasonable inference available on the evidence.

[30] In relation to Mr. Joseph-Soroka, the Crown has argued pursuant to s. 21 of the Criminal Code, he is a party to Ms. Wilson’s possession of the fentanyl for the purpose of trafficking. In order to support a conviction, the Crown needs to prove he knew Ms. Wilson was in possession of fentanyl, that she intended to traffic it and, he did something to assist her in that manner of possession.

[31] Although the Crown could likely have also argued he jointly possessed the fentanyl with Ms. Wilson, I am satisfied Mr. Joseph-Soroka did assist in her possession of it, making him party to the offence.

[32] The evidence that he knew she was in possession of the fentanyl and was intending to traffic it, is overwhelming. They left from their residence, they were together in close proximity in the car he was driving, he was present when Ms. Wilson engaged in two drug transactions and was about to engage in another, and most daunting, the .3 grams of fentanyl was found in plain view on the seat he occupied when the police moved in. In all these circumstances, it is clear Mr. Joseph-Soroka knew Ms. Wilson was in possession of fentanyl and what she was doing with it.

[33] How he assisted Ms. Wilson in her possession of it for her trafficking is also straightforward. He allowed her to bring it into the vehicle he was operating, there it was secured and kept out of the open, and he drove her from transaction to transaction so she could fulfill her intention for it by trafficking it. In all these circumstances I find that his actions were done to assist Ms. Wilson, making him a party to the offence, and as such the Crown has proven the charge of possession of fentanyl for the purpose of trafficking against him too.

[34] Finally, both accused were charged with possession of property obtained by crime under $5000.00. This referred to the cash found in the purse. Given I am satisfied Ms. Wilson was engaging in drug transactions that day I am satisfied the origin of this cash came from her drug dealing activities. I am also satisfied, Mr. Joseph-Soroka assisted her in obtaining it again by driving her from transaction to transaction so he is a party to the offence as well. As a result, the Crown has proven this charge against both accused too.

Conclusion

[35] For all of these reasons, I am satisfied the Crown has proven both charges against both accused beyond a reasonable doubt and convictions will be registered against both accused.

Released: February 6, 2023 Signed: Justice Robert S. Gee