Court File and Parties

DATE: April 17, 2024 COURT FILE No: 22-0132-02 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-AND-

DEANDRE KADEEM DAVIS

Before: Justice M. G. March

Heard on: April 19 & 26, June 1, November 7 & 16, December 11, 2023 Reasons for Judgment rendered: April 17, 2024

Counsel: Timothy McCann, Counsel for the Federal Crown Joseph Addelman, Counsel for Deandre Davis

March, M.G., J. :

Introduction

[1] On April 19, 2023, the blended voir dire/trial of Deandre Davis (“Davis”) and Hannah Jardine (“Jardine”) began before me after they entered pleas of not guilty to offences alleged to have been committed in the City of Pembroke on September 15, 2021, as follows:

a) possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (“the CDSA”),

b) possessing heroin for the purpose of trafficking contrary to s. 5(2) of the CDSA,

c) possessing property obtained by the commission of an offence punishable by indictment contrary to s. 355(a) of the Criminal Code of Canada (“the Code”),

d) possessing fentanyl for the purpose of trafficking contrary to s. 5(2) of the CDSA, and

e) possessing benzodiazepine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

[2] At the outset of trial, defence counsel made admissions regarding:

a) the date the alleged offences were said to have occurred,

b) the jurisdiction of this Court to hear the matter,

c) the identity of each accused as the accused before the Court, and

d) the continuity of the substances found in the trunk of the vehicle and later analyzed by Health Canada to scientifically determine what each representative sample taken from them chemically contained.

[3] Over the course of five days, Crown counsel called as witnesses six peace officers on scene for the arrest of the co-accused at 124 Hunter St., Pembroke on September 15, 2021, and one other officer, Detective Constable Hicks, who reviewed the investigative work of his fellow officers and prepared an Expert Evidence Report pursuant to section 657.3 of the Code on or about March 13, 2023. The defence did not challenge the qualifications of Detective Constable Hicks to provide expert evidence to the Court regarding:

a) the illegal distribution of controlled drugs and substances,

b) their sale,

c) their packaging,

d) the quantities indicative of an intention to traffic in controlled drugs such as fentanyl, heroin and cocaine, and

e) common jargon used amongst traffickers in illegal drugs.

[4] Of note, Davis also had outstanding warrants for his arrest on the day in question from the Greater Toronto Area (the “GTA”) on charges unrelated to those before me. Those warrants were the grounds for his arrest on the day in question.

[5] Further, sometime during the month of September 2021, a confidential informant (“CI”) brought Davis to the attention of police. More particularly, the CI provided a tip to Det. Cst. Schilling of the Ontario Provincial Police (“OPP”) regarding Davis’s involvement in trafficking illegal drugs in the Pembroke area.

[6] On November 17, 2023, before I called upon counsel for submissions regarding an application brought by counsel for Davis under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”), Crown counsel directed a stay of all charges against Jardine. The Charter application then proceeded, and argument was heard from counsel for Davis and Crown counsel.

[7] On December 5, 2023, I dismissed the Charter application brought on behalf of Davis contending that his right to be secure against unreasonable search and seizure was infringed or denied. In doing so, I gave oral reasons on record, which I will later touch upon below.

[8] On December 11, 2023, with the resumption of the trial, counsel for Davis called one witness, Tushana Morris, to explain how another individual, Dale Morris, had possession of the subject vehicle the day prior to Davis’s arrest. Ms. Morris intimated that her uncle, Mr. Morris, was the person responsible for leaving a substantial quantity of illegal drugs in the white Audi operated by Davis immediately prior to his arrest on September 15, 2021.

[9] Clearly, the case for the Crown against Davis is thus largely a circumstantial one. The only manner by which the Crown can secure a conviction against Davis is to persuade this Court beyond a reasonable doubt that the reasonable inference, exclusive of all others, that can be drawn in respect of the illegal drugs and large amounts of cash found on Davis’s person and in the trunk of his car, which he was operating immediately prior to his arrest, leads to the inescapable conclusion that:

a) he was the person, who possessed and controlled the drugs found in the trunk, and

b) he had the cash through the commission of indictable offences in Canada.

The Evidentiary Background

The Confidential Informant:

[10] As previously mentioned, the CI with whom Detective Constable Schilling had a twelve year history, told him in his capacity as a member of the Pembroke Street Crime Unit of the OPP that a black guy named “Deandre” was selling large amounts of cocaine in the Pembroke area. Detective Constable Schilling had over 20 years of experience as a police officer by that point in time.

[11] To Detective Constable Schilling’s knowledge, the CI had never provided false information to police in the past.

[12] The CI described “Deandre” as 6 feet tall and thin with short hair. He drove a white Audi. He carried the drugs and cash on him. He was associated with a white, blonde girl. “Deandre” was in the area to sell drugs with Mr. Morris.

[13] Detective Constable Schilling was made aware through the CI as well that Mr. Morris, with whom the officer was aware, was introducing “Deandre” to other locals known in the drug subculture in Pembroke such as Major Charles and Carleton Gifts.

[14] Detective Constable Schilling was clear that the CI was motivated by financial gain in providing information to police.

[15] Detective Constable Schilling reached out to fellow officers in the Toronto area and Peel region. He also conducted police computer database checks such as the Record Management System and the Canadian Police Information Center to determine whether the authorities had prior dealings with the person known as “Deandre”. Through doing so, the officer learned that Deandre’s last name was Davis, and that he had outstanding warrants for his arrest.

The Arrest and Search of the Vehicle:

[16] Detective Constable Schilling developed an operational plan to arrest Davis on the strength of the outstanding warrants from out of jurisdiction. The officer obtained a photo of Davis and shared it with other members of the OPP who were to be involved in the arrest.

[17] Having learned of Davis’s history with firearms and flight from police, Detective Constable Schilling consulted with his Inspector. Police then decided to involve the Tactical and Rescue Unit (“TRU”) of the OPP to carry out the arrest of Davis, because he was “high-risk”.

[18] At 14:52 on September 15, 2021, Davis and Jardine were arrested at gunpoint at 124 Hunter St., Pembroke, by two members of the TRU team as the sole occupants of the white Audi. The TRU team members handed Davis and Jardine over to fellow officers within the Pembroke Street Crime Unit of the OPP.

[19] At 14:55, Detective Constable Schilling attended the scene of the arrest. At 15:04, he informed Davis of the reason for his arrest, namely the outstanding warrants from the GTA. The officer read rights to counsel to Davis. The accused wish to speak to duty counsel with Legal Aid Ontario.

[20] Detective Constable Schilling understood that Peel Region Police Service wanted Davis returned to them for prosecution. At 15:11, Detective Constable Schilling turned Davis over to Constable McInnis in full uniform for transportation to the Upper Ottawa Valley OPP detachment.

[21] At 15:18, Detective Constable St. Cyr, a member of the Renfrew Street Crime Unit called in to assist with Davis’s arrest, informed Detective Constable Schilling that he had found cocaine in the Audi which Davis had just been operating.

[22] Detective Constable St. Cyr testified that he arrived on scene for the arrest of Davis at 14:57 on September 15, 2021. Shortly thereafter, his fellow officer, Detective Constable Yarmel, notified him of the presence of an open can of beer on the front passenger floor of the Audi, a Carling brand.

[23] With this knowledge, Detective Constable St. Cyr conducted a search of the car invoking his powers granted under the Liquor Licence and Control Act (“LLCA”), a provincial statute. Next, he noticed in the centre console area a burned marijuana cigarette and some dry cannabis. Detective Constable St. Cyr was aware that under another provincial statute, the Cannabis Control Act (“CCA”), he had further authority to search the vehicle.

[24] Consequently, he went into the trunk of the Audi. He removed the panel for what he believed to be a fuse box. He was then struck by the strong odour of ammonia.

[25] He saw inside the fuse compartment plastic bags which he believed contained cocaine. As a result, he closed the trunk of the vehicle and called for a tow truck in order to perform a more thorough search of the vehicle at the police detachment.

[26] He notified on scene Detective Constable Schilling and Sgt. Hartwick what he had seen in the fuse box. He gave evidence that police therefore had grounds for charging both Davis and Jardine with an offence under the CDSA.

[27] Detective Constable St. Cyr remained on scene to await the arrival of the tow truck to ensure continuity and preservation of the evidence located in the Audi. He followed the tow truck to the police detachment.

[28] He continued his search of the Audi in the parking lot of the police station. He located inside the trunk of the vehicle a motorcycle helmet containing a camo-coloured waist bag. The bag had $9000 in cash inside it, as well as a silver iPhone and Davis’s passport.

[29] Exploring further the contents of the fuse box, Detective Constable St. Cyr found a green plastic bag with 126 g of suspected cocaine in it, and a yellow plastic bag containing the following in separate, individually wrapped plastic bags:

a) 95.83 g of suspected heroin,

b) 16.82 g of heroin,

c) 41 g of fentanyl,

d) 2.91 g of cocaine, and

e) 1.98 g of fentanyl.

[30] Detective Constable Yarmel photographed the interior of the trunk of the Audi. When those photos were presented to Detective Constable St. Cyr, he was able to identify where the illegal drugs and other items were specifically located during his search of the vehicle. A photo was also taken of the ashtray and USB charger area depicting the burned marijuana cigarette as well.

[31] Detective Constable St. Cyr conceded that he did not know Davis before the day he assisted in his arrest. He understood that police would be arresting Davis at a minimum on the strength of the outstanding warrants from Peel Region.

[32] As early as 09:37, he had been contacted to assist in the takedown. He arrived in Pembroke at 11:30 from Renfrew. He was conducting “static surveillance” trying to locate the white Audi. He did not learn of Davis’s arrest until 14:57 when he received word that the OPP’s TRU team members had taken Davis into their custody.

[33] He did not speak or interact with Davis on scene. He maintained that he saw an open beer on the front passenger floor of the Audi. But for that discovery, he stated that Davis would have simply been sent back to Peel as part of the execution of the outstanding warrants for his arrest.

[34] The powers of search he derived from the location of the open beer can “changed the dynamic” according to Detective Constable St. Cyr. Given its evidentiary significance, he did not know why it had not been photographed. Nor did he know if there was actual beer in the can.

[35] However, once it was found, he began searching in the immediate area for more alcohol including the driver’s seat area where Davis had been sitting while operating the Audi. He did not have to open the lid to the ashtray to see the cannabis roach. He did not know if the roach was sent to Health Canada for analysis. He was clear nevertheless that he recognized it as a basis for conducting a further CCA search.

[36] Detective Constable St. Cyr did not believe the CCA limited the areas within the vehicle, which could be searched for more cannabis. He was candid in testifying that he felt the CCA granted him the authority to search the Audi’s trunk. He believed the wording of the statute granting powers of search to police under the CCA and the LLCA were almost identical.

[37] He added that the panel to the fuse box was going to be removed, even if he had not found the roach. He explained that the panel is in essence an access door. He believed his powers of search were sufficiently wide to allow him to remove the panel and look inside the compartment behind it.

[38] He denied that he would have searched the fuse box area even if police had not found the open beer can or the roach. He confirmed that no search warrant was ever obtained for the Audi. The car was later searched at the detachment incident to arrest for Davis’s suspected possession of cocaine for the purpose of trafficking in it.

[39] Detective Constable St. Cyr agreed that he had prior knowledge through his police sources, and information he received from fellow officers the day of the arrest, that Davis may be in possession of cocaine. When referred to the duty book notes kept by him on that day, September 15, 2021, Detective Constable St. Cyr was referred to his entry “open tallboy Carling can of beer”. He confirmed he made no mention of any beer being in the can. However, he quickly added that Constable Yarmel did not tell him it was empty. Detective Constable St. Cyr did not inspect the can himself.

[40] Detective Constable St. Cyr testified that indeed the mother lode of the drugs were all found in the trunk. There was nothing in plain view.

[41] Detective Constable Yarmel gave evidence that, like Detective Constable St. Cyr, he was called in from Renfrew, where he is normally stationed, by the Pembroke Street Crime Unit to assist with locating Davis. At 11:40, he was ordered by Sgt. Hartwick to go to Hunter Street in Pembroke and to assist with the arrest of a wanted individual.

[42] By 14:57, he was made aware that both Davis and Jardine were in police custody. Detective Constable Yarmel stated he noticed the beer immediately upon looking into the car, the Audi, while Detective Constable St. Cyr was assisting him with searching it. What is unclear is exactly when Detective Constable Yarmel saw the beer can. He made no time entry for when he first spied it.

[43] Detective Constable Yarmel poured the Carling brand tallboy out at the scene of Davis’s and Jardine’s arrest at 124 Hunter St., Pembroke. The officer’s first mention in his notes about seeing the beer can was 15:41. By that point, the tow truck had already arrived on scene. He believed the tow truck had been there for some five minutes prior to the Audi being cleared to be transported to the detachment.

[44] At 16:16, he was directed to conduct a further search of the vehicle at the detachment. He did not know why his duty book notes were not in chronological order. He was unable to say when exactly he first noticed the beer can.

[45] Detective Constable Yarmel emphasized that he did not know why Davis and Jardine were arrested, nor what for. He maintained nevertheless that the first thing he noticed upon looking into the Audi was the open can of beer. He simply did not note at what specific point in time he saw it before the vehicle was taken to the detachment.

[46] Ultimately, he was the officer assigned to photographing the interior of the vehicle while it was at the station and being further searched. He did not take a photo of the beer can. His focus was on the drugs, but he did not note the times those were observed either.

[47] Detective Constable Busschaert, a female officer who dealt with Jardine at the scene of Davis’s and her arrest, testified that she made a late entry in her duty book regarding the discovery of the open can of beer. Detective Constable Busschaert stated that she was directed by Detective Constable St. Cyr to issue a ticket to Davis for having open alcohol in his vehicle.

[48] Detective Constable Busschaert was not made aware on scene of the discovery of the beer can. Indeed, it was Detective Constable Schilling who told her about the discovery of cocaine in the Audi. She did not learn of the open beer can from Detective Constable St. Cyr until the following day, September 16, 2021.

The Charter Ruling:

[49] For oral reasons given on December 5, 2021 I dismissed the application brought on behalf of Davis through his counsel alleging a violation of Davis’s right to be secure from unreasonable search and seizure under section 8 of the Charter regarding the search of the vehicle he was operating on the day in question, when both Jardine and he were arrested. I therefore denied the defence request to exclude the evidence leading to the discovery of the drugs and cash found in the trunk of Davis’s car, and the cash located on his person.

[50] In short, I found that the LLCA and the CCA empowered a search of the entire vehicle by Detective Constables St. Cyr and Yarmel upon discovery of the open beer can and the cannabis roach. (See ss. 42(1) and (2) of the LLCA, s. 12(3) of the CCA, R. v. Graham (2018) ONSC at paras. 80 – 84, R. v. Annett and R. v. Grant (2021) at para. 105)

[51] I refused the invitation to conclude that Detective Constables St. Cyr and Yarmel fabricated the existence of the open beer can containing alcohol. While a photograph of the can was not taken by Detective Constable Yarmel, one was taken of the cannabis roach found near the centre console of the Audi. The presence of the alcohol and cannabis empowered a warrantless search of the vehicle.

[52] I believed Constable Yarmel when he testified that it was clear to him when he opened the passenger door to Davis’s vehicle that the beer was on the floor. I believed Constable St. Cyr’s evidence as well that Yarmel told him about its existence. It triggered Constable St. Cyr’s LLCA search. In turn, it led to the finding of the roach. The search of the trunk was therefore justified and not in breach of Davis’s section 8 Charter right.

[53] I opined that the police hope on the day Davis and Jardine were stopped in the Audi, as part of Detective Constable Schilling’s “operational plan”, was perhaps to arrest Mr. Davis, to search his person, to find illegal drugs, and to then search the vehicle as an incident to arrest for possession of the drugs. However, things did not pan out completely as expected for police that day.

[54] Perhaps, the secondary option was to seek a search warrant for the vehicle based on the information obtained from the CI.

[55] None of this speculation on my part matters because the dynamic did change when Detective Constable St. Cyr was told by Constable Yarmel about the open can of beer. It was a game changer. It provided police with the legal means to search the entire vehicle including its trunk.

[56] Why Constable Yarmel did not photograph the beer can, given its importance, is astounding, but it did not impel me to a finding that Detective Constable St. Cyr and he fabricated evidence, nor perjured themselves. My finding of fact is that the open can was first seen on the front passenger floor of the Audi by Constable Yarmel. Without its existence, the trunk would not have been opened without police seeking further judicial authorization to do so.

The Defence Evidence:

[57] On December 11, 2023, Tushana Morris testified that on the day in question, September 15, 2021, she was the intimate partner of Davis. They had been dating for the year prior to his arrest. They knew each other for much longer - some 18 years. They never really cohabited.

[58] Although she was residing in the GTA on September 15, 2021, she happened to be in Pembroke.

[59] She explained that Davis and she left the GTA on September 12, 2021 to travel to Pembroke in the Audi. They are its registered owners.

[60] Ms. Morris’s father, grandparents and uncle, Dale Morris, all lived in Pembroke. Her uncle, she added, was in the process of moving. Davis and she were assisting him by collecting some of his belongings.

[61] Video surveillance of the four-unit apartment building located at 124 Hunter St., Pembroke, provided to police by its owner and made Exhibit 4 at Davis’s trial, was played for Ms. Morris while she gave her evidence. She was able to identify three individuals who exited the four door, white Audi on September 14, 2021, the day prior to Davis’s and Jardine’s arrest. Her uncle, Dale Morris, emerged from the front passenger seat. Davis and Jardine exited the rear seat.

[62] Ms. Morris added that Dale Morris’s partner, Lynn, was driving. Ms. Morris remained with her in the vehicle.

[63] Dale Morris entered 124 Hunter St. He did not remain inside long.

[64] Ms. Morris offered that her father’s backyard faces on to Hunter Street. It is merely a 30 second walk from her father’s house to 124 Hunter.

[65] On September 15, 2021, when the arrest occurred, she was at her father’s place and could see the events unfold. They were out having a cigarette when “all the commotion started”.

[66] Ms. Morris attempted to speak to the OPP following the arrest. She was given the name of Detective Constable Busschaert, but she was told that officer was not on duty at the time she tried to contact someone related to the investigation of Davis. She left a message that she wished to speak to Detective Constable Busschaert; however, no police officer ever called her back.

[67] Ms. Morris went on to state that Jardine was just a friend of Davis’s and hers who happened to be in Ottawa shortly before the arrest took place. Her partner Davis and she told Jardine that if she could make her way to Pembroke, they would bring her back to the GTA. Jardine did so and was staying in a hotel or motel in downtown Pembroke awaiting the day when Davis and Ms. Morris would travel back home with her.

[68] With Davis’s arrest, Ms. Morris found herself stranded in Pembroke. She had to find a way home by calling a girlfriend to come pick her up. The Audi was not released from its police impoundment until some four months later following Davis’s release on bail.

[69] When Ms. Morris regained possession of the vehicle, she found Dale Morris and his girlfriend’s belongings in it including their clothes and some of Lynn’s trinkets. She went on to explain that she lost track of her uncle soon after Davis’s arrest. The last time she spoke with her uncle was two hours after Davis was taken into police custody.

[70] Ms. Morris made repeated attempts to connect with her uncle, but no one has seen him since -not her dad, nor her grandparents.

[71] Ms. Morris was hoping to tell police, specifically Detective Constable Busschaert, that her uncle, Dale Morris, had borrowed the Audi from Davis and her the night prior to Davis’s arrest.

[72] Ms. Morris observed that when she last saw her uncle at her father’s house on September 15, 2021, Dale Morris was “frantic”.

[73] She added that she did not really speak of the case involving Davis much prior to the day she gave her testimony. She did not have much detail to offer to police because there was not much she knew.

[74] She explained that there was a dual purpose to her desire to speak with police. Firstly, she wanted to tell the officers about what her uncle, Dale Morris, had told her about the origin of the drugs found in the Audi. Secondly, she wanted the vehicle returned to her because it is financed, and she is a joint owner of it with Davis.

[75] Ms. Morris twice called the police herself seeking to have the vehicle given back to her. She left voicemails. She also attended in person at the Upper Ottawa Valley OPP detachment in Pembroke. On that day, she was given Detective Constable Busschaert’s name.

[76] At no point did Ms. Morris provide a written statement to police regarding her uncle Dale Morris’s possible involvement in respect of illegal drugs found in the Audi belonging to Davis and her.

[77] She maintained that no one knows where her uncle, Dale Morris, is. She did not know if any member of her family had made a Missing Person’s Report to police regarding her uncle’s disappearance. She reckoned she would be aware, if someone had.

[78] She stated that her uncle Dale Morris’s girlfriend’s last name was Carney, she thought.

[79] She was not familiar with the email address, dkd9067@icloud.com. She had never heard of that address. She thought that Davis’s email address was “deandredavis24@gmail.com”.

[80] She was not aware of Davis having had some dental work done just prior to his arrest.

[81] On September 14, 2021, she was not aware of why Davis would have exited the Audi. She speculated that he may have just wanted to stretch his legs.

[82] She observed that he was smoking a cigarette and had a cell phone. She commented that it appeared as though he was following her uncle, Dale Morris, into the apartment building located at 124 Hunter St. She agreed that she knew that that was where Davis was arrested the following day.

[83] She did not know persons by the names of Ashley Miles or Shane Townes who may have lived at that address at the time.

The Cell Phone Dump:

[84] Detective Constable Busschaert testified that she authored the documents filed in support of obtaining a Warrant to Search the cell phones located in the white Audi at the time of Davis’s and Jardine’s arrest. There were three phones in total. One, an iPhone, was located in the area of the driver’s seat. Another was located on the passenger seat. A third was found in the trunk.

[85] Detective Constable Busschaert explained that a Cellebrite Extraction Report was produced following forensic analysis done by the OPP to examine text message exchanges and photographs stored on the iPhone. The text message exchanges were associated to an email address – dkd9067@icloud.com.

[86] One of the text messages sent from the account associated to dkd9067@icloud.com sent August 23, 2021 at 8:58:13 stated:

“I’m just here coolin bout to get Brampton”

[87] Another of the text messages from that same email account on August 26, 2021 one at 12:33:44 read:

“You hit up the Lcbo? If not You can grab something for me and I’ll give you the cash when I get their I’m on my bike”

[88] The photographs highlighted in the Report depicted ‘selfies’ of Davis’s face, specifically his teeth. Davis was seeking a contract with a Dr. Montoya for dental work he wished to have done by him in the U.S.

[89] The officer was able to identify Davis as the subject of those photographs.

[90] The Report was made Exhibit 1 at Davis’s trial.

The MTO Records:

[91] Detective Constable Busschaert also requested a Vehicle Record for the Audi from the Ministry of Transportation for Ontario. The vehicle was registered on September 1, 2021.

[92] The Vehicle Record indicated that the registered owner of the licence plate for the vehicle was Ms. Morris, whose place of residence was listed as 482 Nancy St., Pembroke. Its joint owners were Davis and Ms. Morris, whose places of residence were indicated to be 28 Stillwater Cres., Brampton.

[93] The Vehicle Record was made Exhibit 2 at Davis’s trial following the document’s identification by Detective Constable Busschaert.

Scientific Analysis of the Substances Found in the Trunk of the White Audi:

[94] Detective Constable St. Cyr testified that he singled out representative samples of the suspected illegal drugs found individually packaged in the trunk of the vehicle Davis was operating immediately prior to his arrest. He submitted the samples to Health Canada to have their chemical nature analyzed on September 21, 2021.

[95] Certificates of Analyst were identified by Detective Constable St. Cyr and made Exhibits 10 through 15 inclusive at Davis’s trial, which confirmed that:

a) the 2.91 g of suspected cocaine in the yellow bag contained in fact cocaine,

b) the 126 g of suspected cocaine in the green bag contained in fact cocaine,

c) the 1.98 g of suspected fentanyl in the yellow bag contained in fact fentanyl and benzodiazepine,

d) the 16.82 g of suspected heroin in the yellow bag contained in fact heroin,

e) the 41 g of suspected heroin in the yellow bag contained in fact fentanyl and benzodiazepine,

f) the 95.83 g of suspected heroin in the yellow bag contained in fact heroin.

[96] Some of the Certificates of Analyst identified non-controlled substances also scientifically determined to be contained in the representative samples sent to Health Canada for determination as to their true nature.

The Expert’s Report:

[97] When Detective Constable Hicks testified on June 1, 2023, he made reference to an Expert Evidence Report he authored upon a review of the investigative work done by his fellow officers involving Davis. Specifically, Detective Constable Hicks formed opinions and conclusions in regard to suspected illegal drugs found in the trunk of the Audi based on findings reported by his fellow officers in the Records Management System (an OPP data base), a Case File Synopsis, Exhibit List/Property List, officer’s notes, Health Canada Certificates of Analyst and photos taken during the investigation of Davis.

[98] Detective Constable Hicks was aware that over $3000 in cash was found on the person of Davis. In the trunk of the Audi, which was towed to the Upper Ottawa Valley detachment of the OPP, officers located a camouflage coloured waist bag containing $9000 cash, a silver iPhone, a passport belonging to Davis and the illegal drugs.

[99] Detective Constable Hicks’ Report explained that fentanyl is a synthetic opioid, which is up to 100 times more potent than morphine. It is commonly diluted with cutting agents, he wrote, as it makes its way through the various levels of the distribution system for trafficking in it. For example, fentanyl, when it arrives in Canada from countries such as China and Mexico, is of a much higher purity than when it is sold at street level.

[100] The Report further indicated that the majority of fentanyl users follow a “buy-use-buy-use” format, which is to say - they do not normally purchase or carry large quantities of fentanyl on them. They acquire the drug in street level increments, such as 0.1 g, an amount commonly referred to as a “point”.

[101] A point of fentanyl commonly sells on the street anywhere in the range of $30-$50. A gram would fetch something in the range of $200-$300. 28 g or an ounce would garner $3200-$4000.

[102] If the total quantity of seized fentanyl from the Audi, specifically 42.98 g, were sold in 1 g increments, its value, Detective Constable Hicks estimated, would be in the range of $8,596-$12,894. Obviously, the revenues from its sale would be much greater if it were sold in “point” amounts.

[103] Detective Constable Hicks indicated as well that heroin is an opioid, which is up to 10 times more potent than morphine. If the total amount of 112.65 g of heroin found in the trunk of the Audi were sold at 0.1 g increments, the total value would exceed $22,000. If sold in quantities of 1 g, the yield would amount to roughly $17,000 at the low end of the range.

[104] Cocaine, Detective Constable Hicks set out in his Report, is a strong stimulant derived from the leaves of the coca plant. The cocaine found in the trunk of the Audi, in total some 129 g, would garner in sales at the 1.0 g level in excess of $10,000, the officer opined.

[105] The Report further detailed how illegal drugs are commonly apportioned by traffickers to facilitate their sale. Detective Constable Hicks pointed out that the seized drugs were packaged in various quantities, which were consistent with drug trafficking.

[106] According to Detective Constable Hicks, cash is the preferred method of payment for those who sell illegal drugs. It permits traffickers to avoid banking institutions. Often, they keep large amounts of cash on their person or otherwise in their possession.

[107] From the Audi, $9000 was seized from a camouflage coloured pouch found in the trunk. The $9000 amount was arranged for a “quick count”, which means the grouping of the silver bands on the banknotes switch from end to end and denote $1000 increments.

[108] Further, Detective Constable Hicks in his Report emphasized how mobile communication devices are a “necessity for drug traffickers”. The portability of such devices ensures immediate and around-the-clock communication with associates and/or customers with whom traffickers negotiate. As stated by Detective Constable Hicks, “It is common for drug traffickers to possess multiple mobile communication devices, where one device which is used for drug trafficking can easily be discarded if necessary to avoid police detection”.

[109] From the Audi, Detective Constable Hicks pointed out in his Report, three cell phones were seized. A cell phone data extraction report for one of the iPhones found in the Audi uncovered the following texts sent on September 12, 2021 at 12:31:58:

“What you need”

That text emanated from an unknown source.

[110] The answer received to that text sent at 12:33:20, less than two minutes later, stated:

“9 pack”.

That response came from an account associated to dkd9067@icloud.com.

[111] Later, at 12:36:57, the unknown source messages:

“He said 10.5”

[112] The account associated to dkd9067@icloud.com replied inquisitively:

“Can’t do it for 10”

[113] In his Report, Detective Constable Hicks interpreted the response received from dkd9067@icloud.com to be a “price negotiation” to have the cost for the supply of the “9 pack” lowered to $10,000 from the previously offered $10,500. Detective Constable Hicks added that, in his experience, such a price range is consistent for the purchase of nine ounces of cocaine.

[114] On September 13, 2021, a text message is sent to the account associated to dkd9067@icloud.com from an unknown source. The text simply stated:

“Yo”

[115] On September 14, 2021, the account associated to dkd9067@icloud.com responded:

“Yo, it’s not gonna make sense to wholesale ounces for 2 especially if it’s gonna take pretty much a day to finish”

Detective Constable Hicks in his Report interpreted this response to question the utility of selling ounce level drugs for the price of $2000.

[116] The next text highlighted by Detective Constable Hicks in his Report involved the following exchange on September 14, 2021 where the account associated to dkd9067@icloud.com stated at 8:03:35:

“We need to get in a spot so we can get some 200 a gram chops for this trip to make sense”

Detective Constable Hicks interpreted this text message to make reference to a price of $200 per gram of drug substance to be sold, and a chop is a slang term for a street level drug sale.

[117] The last message which Detective Constable Hicks speaks to in his Report was sent from the account associated to dkd9067@icloud.com on September 15, 2021 at 12:33:26, the day of Davis’s arrest. It reads:

“Why did you go over their and I never sent you to collect anything from her, after we collect everything from her and and major I’m ready to get outta here”

[118] This last text Detective Constable Hicks interpreted to be a reference to debt collection. The pricing, he opined, of $200 per gram is consistent with street level costs for either fentanyl or heroin.

[119] Detective Constable Hicks concluded in his Report that 42.98 g of fentanyl, 112.65 g of heroin, and 128.91 g of cocaine seized during his colleague’s investigation of Davis’s Audi led him to “draw a strong inference that the seized fentanyl, heroin and cocaine was for the purpose of trafficking, (his emphasis) and not solely for personal consumption.”

[120] Detective Constable Hicks based his conclusion on the following factors:

a) The total quantity of fentanyl and heroin found in the Audi is not consistent with personal consumption. Fentanyl and heroin users follow the “buy-use-buy-use” format, and do not possess large amounts of either drug at any one time. Typical street level acquisitions of fentanyl and heroin are at the “point” level. In other words, most fentanyl and heroin users buy those drugs in 0.1 g amounts.

b) The total quantity of cocaine found in the Audi is not consistent with personal consumption. Again, most cocaine users follow a “buy-use-buy-use” format and do not possess large amounts of cocaine for personal use at any one time. Cocaine is typically purchased by users in 0.5 g units, or 1 g units, or up to 3.5 g units.

c) There were three different illegal substances found in the trunk. This would illustrate that the trafficker was able to cater to the needs of various individuals by providing three distinct types of substances.

d) Other indicia of drug trafficking were found in the Audi, namely prepackaged drugs, multiple cellular phones, and a large amount of cash organized in a “quick count” manner. There was also another substantial amount of cash found on the person of Davis. Cash is the preferred method of payment for drug traffickers.

e) No paraphernalia for personal use of fentanyl, heroin or cocaine were found in the Audi.

f) The text messages extracted from one of the cell phones found in the Audi and highlighted above disclose a knowledge for trafficking in significant quantities of illegal drugs, and a recency in engaging in such conduct.

[121] Detective Constable Hicks elaborated that drug trafficking is a “multitiered system where high-level dealers will isolate themselves and deal with mid-level dealers to avoid detection. Mid-level dealers provide drugs to street level dealers who will sell to users”.

[122] Detective Constable Hicks, based on his experience, concluded that the contents of the Audi suggested the possessor of the drug was engaged in mid-level trafficking.

[123] He conceded under cross-examination that there was no qualitative analysis of the illegal drugs found in the Audi done by police or Health Canada. However, it is quite common for drug traffickers to dilute the purer quality drugs they receive from their suppliers to increase profitability. One common drug used for dilution purposes is benzodiazepine mixed with fentanyl. Caffeine is another such drug.

[124] Detective Constable Hicks testified that there have been instances in which he has been made aware of 2% fentanyl being mixed with 98% buffing agent to reduce the toxicity and lethal nature of the fentanyl, as well as to stretch out the quantity for sale to make it go “a longer way”. Equally, typical heroin mixtures often only contains 30 to 40% of pure heroin.

[125] Detective Constable Hicks emphasized too that the drugs are held out for what the seller claims them to be, namely fentanyl, heroin or cocaine, and they are sold as if they are pure.

[126] The officer agreed that some of the smaller prepackaged quantities could have been dedicated to personal use, but then again, anything is possible. The total amounts are far more indicative of an intention to traffic in illegal drugs. As Detective Constable Hicks put it, “It is atypical for a user to have that much cocaine in total for personal use.”

[127] With respect to the cell phones’ forensic content extraction, the officer acknowledged that he could not definitively say who was sending and receiving the texts.

[128] As far as the bundling of the cash found in the trunk of the Audi is concerned, Detective Constable Hicks further explained that each time a band of banknotes is inverted in the stack to display its silver edges, it represents a $1000 amount. Although it may not have been drug traffickers who designed Canadian currency to allow it to be bundled into such “bars”, it was conceived to be an anti-counterfeiting method. Any cash intensive business may employ this counting method. However, Detective Constable Hicks testified that, in his experience, he had seen this type of bundling “a lot, for high level drug transactions.”

The Position of the Crown

[129] Crown counsel urged upon this Court a review of all evidence proffered by the state to find that the case against Davis has been proven beyond a reasonable doubt. The Expert Evidence Report of Detective Constable Paul Hicks made Exhibit 16 in the trial went largely unchallenged. All elements of possession for the purpose of trafficking in drugs has therefore been made out, when one considers cumulatively the evidence tendered.

[130] The search of the contents of the cell phone reveals that it belongs to Davis, a person quite clearly possessed of an in-depth knowledge of trafficking in illegal drugs.

[131] He took a photo of himself trying to arrange for dental work to be done. That piece of evidence alone is solid proof that Davis is the owner of the cell phone in question.

[132] Davis was also seen exiting the Audi with a cell phone the day prior to his arrest.

[133] The cell phone searched by police under authority of a warrant was found in the vicinity of the driver’s seat of the Audi, which Davis had been operating immediately prior to his arrest.

[134] One of the email addresses associated to the cell phone starts with the initials “dkd”. They are Davis’s initials.

[135] The messages Davis was sending and receiving by means of that cell phone chronicle a recent history of engaging in drug trafficking transactions. In Crown counsel’s submission, he is patently a “mid-level dealer”.

[136] $9000 in cash was found in the motorcycle helmet in the Audi’s trunk where his passport was also located. That sum of cash was organized in a manner for quick counting (i.e. in $1000 increments), through the creation of inverted silver-edged segments. Further, $3000 in cash was seized from Davis’s person.

[137] Davis, of course, owned the car in question, the Audi. The person who owns it, drives it and controls it, knows what goes into it.

[138] In respect of Ms. Morris’s evidence, Crown counsel argued that she ought to have shown more concern and gone to greater effort to provide some form of statement, in writing, or capable of being reduced to writing, to disclose her uncle Dale Morris’s possible involvement in leaving illegal drugs in the trunk of the vehicle Davis and she own. She knew Davis’s jeopardy. She could have taken further steps to have her uncle investigated.

[139] Further, she is intimately involved with Davis. She is not an independent witness as a result.

[140] All the Certificates of Analyst filed as exhibits in Davis’s trial prove that the substances found in the fuse box of the trunk of the Audi are controlled drugs.

[141] Indeed, logic, reason and common sense would dictate that the person who put them there was a drug trafficker who wanted them kept out of sight, and not in plain view.

[142] No reasonable inference can be drawn other than that Davis possessed those drugs for the purpose of trafficking. The significant amount of cash found both on his person and in the motorcycle helmet, which also contained one of his most important pieces of documentary identification, his passport, must constitute monies obtained by Davis through the commission in Canada of indictable offences.

The Position of the Defence

[143] Defence counsel submitted that the central issue for trial was whether Davis had knowledge and control over the drugs found in the trunk of the Audi. Dale Morris and his spouse borrowed the vehicle a short time prior to its search by police. They had it in their exclusive possession. Other items belonging to them were found in the vehicle by Ms. Morris. Clearly, Dale Morris had the opportunity to secret the drugs into the fuse box.

[144] The defence argued that there was no basis to reject the evidence of Ms. Morris. She saw the frantic reaction of her uncle the day he learned of Davis’s and Jardine’s arrest. Dale Morris’s anxiety was readily apparent to Ms. Morris. Mr. Morris then disappeared.

[145] Ms. Morris attempted to inform Detective Constable Busschaert about what had occurred. Yet, the officer showed no interest in speaking to Ms. Morris.

[146] Ms. Morris had good reason to be in the Pembroke area, as did Davis as her partner. Ms. Morris’s father and grandparents live in Pembroke. Davis and she were also there to assist her uncle, Dale Morris, with his move.

[147] The day prior to Davis’s arrest, he was seen to emerge from the backseat of the white Audi. Clearly, he permitted others to assume control over and operate his vehicle.

[148] Regarding the cell phone contents, defence counsel conceded that whoever controlled it had knowledge of illegal drugs and trafficking in them. However, the cell phone was not exclusively in Davis’s control. Dale Morris had belongings in that vehicle. Dale Morris could also have been the one using the phone.

[149] In terms of the absence of evidence, the police conducted no surveillance as part of its investigation of Davis as a suspected drug trafficker. Essentially, there was no proof of his comings and goings in Pembroke to support the inference that he was trafficking in illegal drugs.

[150] Accordingly, this Court should be left with a reasonable doubt as to whether Davis had knowledge of and control over the illegal drugs found in the trunk of the Audi belonging to him.

The Law

Circumstantial evidence:

[151] In R. v. Villaroman, 2016 SCC 33, the benchmark decision of the Supreme Court of Canada (“SCC”) on circumstantial evidence, Cromwell J., speaking for a unanimous full panel of the SCC explained how it is to be regarded by a trier of fact in the following paragraphs:

[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.

[39] I have found two particularly useful statements of this principle.

[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]

[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

[42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

[43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.

[152] In R. v. Allen, 2022 ONSC 5539 Stibopoulos J. emphasized the importance of a holistic approach to circumstantial evidence. He stated:

[31] When assessing circumstantial evidence and deciding whether it furnishes a reasonable inference of guilt, the trier of fact must guard against considering individual items of evidence separately and in isolation. Instead, such evidence must be viewed as a whole and weighed cumulatively to decide whether it only supports a reasonable inference of guilt and excludes other alternative and plausible explanations: see R v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 70; R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at paras. 78-79.

Reasonable Doubt:

[153] The standard of proof beyond a reasonable doubt is an age-old concept of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.

[154] My colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:

[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.

[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

• The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

• On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

• In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[42] Three years later, in R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, the Supreme Court of Canada clarified at para. 13 that:

In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242.

[155] Very recently, the Supreme Court of Canada hearkened back to some of these fundamental tenets of the criminal law in R. v. Kruk, 2024 SCC 7. The Court held:

[59] The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s. 11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, [1997] 1 S.C.R. 874, at paras. 69-78).

[60] Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72).

[156] I shall apply these above principles of law, of course, as I conduct my analysis of the evidence in this case.

Analysis

The Circumstantial Evidence:

[157] The circumstantial evidence adduced at Davis’s trial which I consider to be of significant weight and relevance is as follows:

a) The aggregate quantities of fentanyl, heroin and cocaine found in the trunk of the Audi are highly suggestive that the person who possessed them did so for the purpose of trafficking. Their sheer volume alone is entirely counterintuitive to personal use. The only conclusion I can draw is that the sizeable store of the drugs hidden in the fuse box was required to meet an ongoing demand for their sale.

b) The illegal drugs were separated into three common types for sale to street level dealers, namely cocaine, fentanyl and heroin. They were placed in an area not in plain sight – a fuse box compartment. Logic and common sense would dictate that the trafficker in those drugs would want to hide them there to avoid their discovery by the authorities.

c) Samples taken from those drugs were submitted by Detective Constable St. Cyr to Health Canada and scientifically analyzed by that agency. Two of those samples contained benzodiazepine (Exhibits 12 and 14). Four contained caffeine (Exhibits 12, 13, 14 and 15). Both benzodiazepine and caffeine are common cutting agents used by traffickers in illegal drugs to stretch out their product and ultimately the profit to be derived from their sale.

d) The cash found on Davis’s person ($3000), as well as the cash found in the trunk of his car ($9000) bundled in a “quick count” manner, is quite indicative of a desire to access and keep tally of significant amounts of Canadian currency. The greater quantity of cash, the $9000, was found in a camouflage waist bag in the Audi’s trunk. This bag also contained Davis’s passport - an important travel document and piece of identification, which one is inclined to carefully safeguard like most other valuables. I accept Detective Constable Hicks’ evidence that cash is the preferred method of buying and selling illegal drugs.

e) The text message extraction for two iPhones found in Davis’s vehicle - one in the driver’s seat area - the other in the trunk - revealed the use of an email account, dkd9067@icloud.com. DKD are Davis’s initials. I am persuaded by Crown counsel’s submission that those 3 consonants, “DKD”, are strongly indicative that the email account belongs to Davis.

f) The text exchanges, as conceded by Davis’s counsel, found on one of those iPhones contained communications squarely aimed at negotiating what appears to be the price for a “9 pack”, or in other words, 9 ounces of cocaine, for the sum of $10,000. According to the testimony of Detective Constable Hicks, that amount of money is consistent with the purchase cost for 9 ounces of cocaine.

g) Further, the text exchanges associated to the email account dkd9067@icloud.com also spoke of doing “200 a gram chops”, or in other words, street-level sales of illegal drugs. They also referred to an expression of displeasure with the timing of collecting monies owed from an unnamed female. I accept Detective Constable Hicks’ testimony that this specific exchange was in relation to a drug debt collection, and $200 to a going, street-level price for the acquisition of a gram of either fentanyl or heroin.

h) Last, but not least, one of the iPhones associated to the email address dkd9067@icloud.com contained actual photographs – ‘selfies’ - of Davis with a focus on his mouth. That same account was used to negotiate with a dentist based out of the USA, a Dr. Montoya, who was prepared to quote the cost of dental work Davis was seeking to have done on his teeth, in addition to other available options depending on what Davis was willing to spend. Davis’s photos on that iPhone were positively identified by Detective Constable Busschaert as being an accurate depiction of Davis’s likeness. The officer was with him at the scene of his arrest. Later, she dealt with him at the detachment following his arrest. The officer was able to recognize him as the man in the photos. As a result, I am absolutely certain the ‘dkd9067@icloud.com’ email account belonged to Davis. It had the pictures to prove it.

The Evidence of Tushana Morris:

[158] I place no emphasis on Ms. Morris’s lack of independence, as contended by Crown counsel, due to her romantic connection to Davis. My difficulty with her evidence is that, if she believed her uncle, Dale Morris, was the one who left cash and drugs in the trunk of the Audi, I am skeptical about what little effort she went to in order to draw him to the attention of police. I cannot fathom why she would not have gone to much greater strides to insist on telling police about Mr. Morris’s reaction to the discovery of Davis’s and Jardine’s arrest.

[159] To my mind, Ms. Morris would have and could have done more. She would have demanded to speak with Detective Constable Busschaert. Ms. Morris would have managed to contact that officer – somehow - some way, if she truly believed that her uncle, Mr. Morris, was the one who put the illegal drugs in the fuse box of the Audi belonging to Davis and her.

[160] I point out as well that Davis’s counsel did not challenge Detective Constable Busschaert on her failure to return the calls made to her by Ms. Morris when the officer was under cross-examination.

[161] Accordingly, I can give little credence to Ms. Morris’s evidence so far as it suggests that the now missing Dale Morris was the person responsible for stashing the illegal drugs in the trunk of the Audi which belonged to Davis and her.

The CI’s Evidence:

[162] I wish to note that from an early point in the trial, at the urging of counsel for Davis, I decided to treat the CI’s information provided to Detective Constable Schilling only as potential grounds for Davis’s arrest for drug offences he may have been committing in the Pembroke area. I gave it no weight in assessing and interpreting the circumstantial evidence pointing to his guilt beyond a reasonable doubt. The role the CI played was simply part of the narrative. The CI drew Davis to the attention of police.

[163] As I ruled earlier, the police officers involved, Detective Constables St. Cyr and Yarmel, searched Davis’s car because they were justified in so doing by virtue of the powers conferred upon them under the LLCA and the CCA, not in consequence of any information received from the CI.

The Presumption of Innocence and Davis’s Right to Silence:

[164] Similarly, I make nothing of the outstanding warrants for Davis’s arrest in the GTA. As far as I am aware, his presumption of innocence remains perfectly intact in respect of those charges. I know zero about them.

[165] His right to silence and to choose not to testify at his trial before me was regarded as exactly that – his right. His constitutionally connected right to be presumed innocent was only displaced by the overwhelming circumstantial evidence of his guilt uncovered through the legal search of his vehicle, the expert evidence of Detective Constable Hicks, and the results obtained from the forensic analysis of the drugs and cellphones found in his vehicle.

Conclusion

[166] Upon my assessment of the totality of the evidence, I have no plausible basis to deduce how anyone other than Davis was the person who possessed and controlled the cash found on his person, as well as the person who knew, controlled and therefore possessed at law the drugs hidden away in the fuse box panel of the Audi he jointly owned with Ms. Morris, which vehicle he was operating just prior to his arrest by police.

[167] For the above reasons, I must find Davis guilty on all counts as charged.

DATED: April 17, 2024

March, M.G., J.