Court File and Parties

Ontario Court of Justice

Date: 2023 12 12 Court File No.: Windsor 23-81100519

Between:

His Majesty the King

— And —

Emmanuel Kwarteng

Before: Justice S. G. Pratt

Heard on: 1 August, 19 September, 6 November 2023 Reasons for Judgment released on: 12 December 2023

Counsel: Mitchell Witteveen, for the Crown John Sitter, for the Defendant

Pratt J.:

Reasons for Judgment

[1] Elizabeth Reid Dietrich had a houseguest. While at first Ms. Reid Dietrich was agreeable to Emmanuel Kwarteng staying with her, on 1 February 2023 the Windsor Police got a call asking them to come remove him from the premises. When police entered her apartment, they found Mr. Kwarteng asleep in the living room. Their interaction with him led to the discovery of several cell phones, a large quantity of currency, and various quantities of multiple illegal drugs. He was arrested and charged with four counts of possession for the purpose of trafficking. One of those counts has since been amended and withdrawn by the Crown.

[2] The Defendant argues any connection between him and the drugs is insufficient to find him guilty beyond a reasonable doubt. The Crown argues that taking all circumstances into account, his possession of the drugs for the purpose of trafficking is the only reasonable inference available to be drawn.

[3] These reasons explain why I agree with the Crown, and why the Defendant will be found guilty.

Admissions

[4] Date, time, jurisdiction, and the nature and amount of the substances in issue were all conceded. The Crown filed Certificates of Analyst regarding the substances, as well as the CV and opinion of PC Jeff Coccimiglio that the drugs were possessed for the purpose of trafficking. This evidence was not challenged. The issue in this case is possession, not the purpose of that possession.

Facts

[5] I set out the detailed factual background in this case in my Charter ruling (see: R. v. Kwarteng 2023 ONCJ 398). I will only briefly set out the facts here.

[6] As of 1 February 2023, the Defendant was staying with Elizabeth Reid Dietrich in her residence, apartment 305-395 University Avenue East, Windsor. He was staying on a cot in the living room. On that day, Windsor police received a call seeking their help to remove the Defendant from the residence at the request of Ms. Reid Dietrich. After speaking with her, they went to the apartment and encountered the Defendant. He refused to leave and was eventually arrested under the Trespass to Property Act. A search incident to that arrest located five cell phones, a large amount of currency, and illegal drugs. I have already determined the arrest and subsequent search to be lawful.

Issues

[7] The only issue in this case is whether the Crown has proved possession of the drugs beyond a reasonable doubt.

[8] Subsection 4(3) of the Criminal Code sets out the definition of possession. It states:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[9] Section 2(1) of the Controlled Drugs and Substances Act incorporates this definition into offences charged under that statute.

[10] In the criminal context, the act of possession has two components: knowledge and control. A person must know of the existence of the thing possessed, and he must be in a position to exercise control over it. Both elements must be proved.

Knowledge

[11] Before an item can be possessed in law, the alleged possessor must know of its existence. If he does not know it is in his possession, he cannot be said to possess it. This principle stretches back at least as far as the case of R. v. Beaver, [1957] S.C.R. 531. Speaking for the majority of the Supreme Court of Canada, Justice Cartwright noted:

It still leaves unanswered the question: Has X possession of heroin when he has in his hand or in his pocket or in his cupboard a package which in fact contains heroin but which he honestly believes contains only baking-soda? In my opinion that question must be answered in the negative. The essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance.

[12] This reasoning would extend to a person who not only did not know the nature of the substance in question, but also did not even know it was there. That is the argument made here by the Defendant. The Crown must prove the Defendant knew the drugs were in the duffle bag, and further, that he knew what they were.

Control

[13] The second element of possession is control. To be in possession of an item, the possessor must be in a position to exert control over it. As stated by Justice Doherty in R. v. Chalk (2007) 88 O.R. (3d) 448 (C.A.) at paragraph 19:

Knowledge alone will not establish possession. The Crown must also prove that an accused with the requisite knowledge had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 69 O.R. (3d) 481, [2004] O.J. No. 279, 182 C.C.C. (3d) 97 (C.A.), at paras. 60-61.

[14] Simply knowing a bag has drugs in it will not establish possession if the person with that knowledge has no authority over it.

[15] In summary, then, for a person to possess an item in law, they must have knowledge of the item’s character and be able to exert some kind of authority or control over it.

[16] Possession can take different forms. These are specified in s. 4(3) of the Criminal Code, noted above. Possession can be personal, constructive, or joint. In the present case, the Crown argues the drugs were either in the personal possession of the Defendant or that they were in his constructive possession.

[17] Constructive possession was defined by Justice Fish in the case of R. v. Morelli 2010 SCC 8 at paragraph 17:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[18] The facts surrounding the location and discovery of the drugs are crucial to determining the question of possession.

[19] To review, when police entered the apartment, they found the Defendant sleeping on a cot in the living room. When he was awakened, he sat up. PC Snyder testified that in the cot with him were four cell phones and a fannypack, though I note the photos filed as exhibits, taken both at the scene and later, show five cell phones. PC Coccimiglio’s report also mentions five phones. I don’t believe anything turns on that difference. Inside the fannypack, police found $4,460 bundled in groups of $20s and $50s, and a small plastic bag containing rubber bands. The Defendant denied ownership of the phones and the fannypack, despite all items being in the cot with him as he slept.

[20] Under the cot, police found a duffle bag. They searched it as they’d been told by Ms. Reid Dietrich the bag was his. Inside they found male’s clothing. There was also another fannypack of the Champion brand ultimately found to contain 63.4g of crystal methamphetamine. Police also found a Dove brand shaving bag that contained 1.9g of crack cocaine in a vial and 7g of cocaine and 40.9g of fentanyl, each in plastic bags. A photograph taken at the scene shows the large duffle bag in which the smaller bags and drugs were found to have been directly under the cot.

[21] The crack cocaine was the focus of count 2 on the information. That count was amended to one of simple possession, contrary to s. 4(1) of the Controlled Drugs and Substances Act and was withdrawn by the Crown.

[22] According to the report of PC Coccimiglio, the fentanyl was separated into three packages of 23g, 3.5g, and 14.4g. The latter two quantities are significant, in his opinion, as they represent an “eight ball” and a “half ounce” respectively. These are specific quantities that are frequently trafficked.

[23] The total value of the drugs found, if they were sold at the gram level on the street, was estimated by PC Coccimiglio to be $14,285.

[24] Given that the drugs were not on the Defendant’s person at the time they were discovered, and that he was, in fact asleep when police entered the apartment, the Crown must rely on the surrounding circumstances to prove his guilt. In order for a person to be convicted based on circumstantial evidence, their guilt must be the only reasonable inference available to be drawn. If there is another reasonable inference that points away from the Defendant’s guilt, he must be found not guilty (see: R. v. Villaroman, 2016 SCC 13, [2016] S.C.J. No. 13).

[25] There is no burden on the Defendant to offer other reasonable inferences. It is the Crown who must show there are none.

[26] Following the Defendant’s arrest, he asked PC Snyder for his boots. PC Snyder testified that the boots sought by the Defendant were in the duffle bag where the drugs were found. In cross-examination, he acknowledged he did not note the location of the boots in his notebook. Given that the boots being in the same duffle bag as the drugs would represent a significant link between the Defendant and the drugs, one might expect that point to have been included in the officer’s notebook. That it wasn’t is concerning. I remind myself, however, of two things.

[27] One, an officer’s notes are not his evidence; it is his account given under oath in the witness stand that I must consider. The assessment of that evidence is, of course, impacted by factors like incomplete notes, but the notion that “if it’s not in the notes it didn’t happen” has been discounted by my learned brother Justice Duncan in the case of R. v. Golubentsev, [2007] O.J. No. 4608 (C.J.) at paragraph 30:

My own decision in R. v. Zack, [1999] O.J. No. 5747 is often relied in support of an argument to the effect "If it's not in the notes, it didn't happen". That is not what Zack stands for. Rather, in that case I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying "I didn't note it because I would remember it". Zack is a case about disclosure, not note taking, and it speaks to important matters -- in that case the foundational observation of unsteadiness on the feet that was the basis for the opinion of impairment and demand -- effectively holding that the police can't keep aces up their sleeve. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, disclose the significant observations that he made. Zack should not be interpreted as holding that police notes must be a comprehensive script of everything that occurred.

[28] Two, my concern about this omission from PC Snyder’s notes is largely assuaged by the fact that his typed report apparently stated the Defendant requested boots to wear and that they were “located within the same bag”. In his evidence he referred to the boots being found in the same bag as the drugs. This is not a case where the officer has kept an ace up his sleeve in anticipation of trial. He did include the location of the boots in his report. It is missing from his handwritten notes. In the circumstances, while it would have been better to include that information in the notebook as well, I do not think this issue is significant.

[29] The Defendant testified that his boots were never in that bag. Rather they were near some totes by the window of the room. He also testified that when he went to sleep, the phones were not in the cot with him, and the duffle bag wasn’t under it. He did not know how those items came to be where they were found by police.

[30] Much was made in argument of the absence of Ms. Reid Dietrich from the Crown’s witness list. I did not have any evidence from her regarding how the Defendant came to be staying in her apartment or why she no longer wanted him there. I have no evidence on the nature of their relationship or what activities the Defendant may have been engaging in while staying with her. All I have is what police observed of her on the day of their attendance.

[31] It was suggested that Ms. Reid Dietrich could have planted the items around the Defendant when she entered the apartment by herself prior to police entry. She had told police that she wanted to enter the apartment one last time before the police did because she wanted to check on the well-being of her cat. It was argued that this uncontrolled entry, immediately before police came in, compromised the reliability of what they found to the extent that it raised a reasonable doubt on the issue of possession. Respectfully, I disagree.

[32] The police met with Ms. Reid Dietrich in a neighbouring building, 415 University Avenue East. In his cross-examination, PC Snyder testified that she left that meeting to check on the cat at 12pm. She would have had to go to the 395 building, ride the elevator to the third floor, enter the apartment, check on the cat, return to the ground floor, and rejoin police. According to PC Snyder, the police entered the apartment at 1212pm. Her entry to the apartment, therefore, including transit there and back, was no more than 12 minutes. In fact, it was likely less than that as 1212pm is the time police entered the apartment. They would have had to go to the third floor themselves after reuniting with Ms. Reid Dietrich. That would have taken some amount of time. Setting aside the utter implausibility of her entering the apartment and sneaking five cell phones into the Defendant’s bed, and placing a large, full duffle bag under it, all while he slept, I find she simply didn’t have time to do anything of the sort.

[33] Further discrediting the notion that this was an elaborate frameup of the Defendant is the fact that she was already getting what she ostensibly wanted: police were going to remove the Defendant from the apartment. Why voluntarily give up five cell phones, over $4,000 in cash, and over $14,000 worth of drugs unnecessarily? I reject any suggestion that the drugs were planted by Ms. Reid Dietrich. It is not a reasonable inference available to be drawn on the evidence.

[34] In argument, counsel for the Defendant submitted that the evidence of Ms. Reid Dietrich was necessary for the Defendant to make full answer and defence. If that was the case, and bearing in mind that there is no property in a witness, why was she not called by the defence? There is no burden on the Defendant to call evidence or prove his innocence, but if Ms. Reid Dietrich has such crucial evidence that not hearing it would compromise his right to make full answer and defence, surely some kind of action needed to be taken. I was not told of any attempts by the defence to subpoena Ms. Reid Dietrich, and was not asked for a material witness warrant in advance of service, as permitted by s. 698 of the Criminal Code. I was not asked to call her as the Court’s witness. No steps to bring her to court were taken.

[35] I cannot draw any kind of adverse inference against Ms. Reid Dietrich because of her absence, when I have no evidence that either party attempted to secure her attendance.

[36] I heard evidence from the Defendant that many people were in and out of the apartment each day. Others also slept there. He said there were two cots in addition to the bedroom. People slept on the cots, on the floor, even in the bathtub. The apartment was, he said, “a party spot”. It was argued, given the constant traffic in the apartment, that the Crown hadn’t proved the drugs belonged to the Defendant. They could just as easily have belonged to another frequenter of the residence.

[37] I would be more inclined to accept that possibility if it weren’t for two things: the location of the drugs, and the value of the drugs.

[38] Had the drugs been out in plain view, or a more accessible area like a kitchen cupboard, the suggestion that ownership couldn’t be determined would be more attractive. These drugs, however, were not out in plain view, or even in a public area of the apartment. They were in a bag, inside another bag together with the Defendant’s boots, under the Defendant’s cot. He was sleeping inches away from them. Even counsel for the Defendant agreed that control of the duffle bag could likely be shown by the Crown.

[39] Second, the drugs had a street value of over $14,000. This is not a small personal stash that a visitor would leave unattended in “a party spot”. This is a significant amount of drugs, partly packaged for sale. I heard no evidence of any paraphernalia like pipes or lighters found with the drugs, that might suggest use. It is clear the drugs found in the duffle bag were sales inventory. I would borrow the observation made by my brother Justice Allen, referred to by the Court of Appeal for Ontario in the case of R. v. Robinson 2009 ONCA 626 at paragraph 40, that large quantities of drugs are not simply left lying around. The idea that the drugs could have belonged to some other visitor may be a possible inference, but it is not a reasonable one.

[40] The Defendant was staying with Ms. Reid Dietrich in her apartment. When police entered at her request, they found him sleeping in the living room on a cot. When the Defendant sat up, police saw he had several cell phones in the cot with him. He also had a fannypack containing over $4,000 cash and a bag containing elastics. In the duffle bag under the cot and within easy reach of the Defendant was another small bag with crystal methamphetamine in it. Yet another small bag in the duffle contained cocaine, crack cocaine, and fentanyl. The fentanyl was partially packaged in amounts indicative of preparation for sale. When he was arrested, the Defendant asked for a pair of boots. As I alluded earlier, I find as a fact those boots were in the duffle bag.

[41] To the extent that this case should be assessed pursuant to the principles in R. v. W.D., [1991] 1 S.C.R. 742, I find that I neither believe nor am I left with a reasonable doubt by the evidence of the Defendant. I found his evidence lacked any ring of truth. It is contradicted by other evidence I do accept and is inherently unbelievable. As but one example, the suggestion that he woke up surrounded by cell phones in bed with no idea how they got there is, to again quote Justice Allen in Robinson, “palpable nonsense”. I reject it in its entirety.

[42] I accept the evidence led by the Crown. On all the evidence, the only reasonable inference available to be drawn is that the Defendant was in possession of the items in and under the cot. He had control of the duffle bag and knowledge of its contents. He kept the drugs in a place occupied by him, and for his own benefit. Considering the quantities of the various drugs, the large amount of bundled cash, the multiple cell phones, and the packaging of the fentanyl, the only reasonable inference is that he possessed the drugs for the purpose of trafficking them. The Crown has proved each offence beyond a reasonable doubt.

[43] The Defendant will be found guilty of all remaining counts.

Released: 12 December 2023 Signed: Justice S. G. Pratt