Ontario Court of Justice

Date: 2024 09 12 Court File No.: Toronto 4810-998- 23-10000906-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

YONATHAN DEBESSAY

Before: Justice Christine Mainville

Heard on: August 12, 13 and 14, 2024 Reasons for Judgment released on: September 12, 2024

Counsel: Kristan Jazvac, counsel for the Crown Matthew Campbell-Williams and Ramez Ghaly, counsel for the Accused

Mainville J.:

[1] Mr. Debessay is charged with possession for the purpose of trafficking of crack cocaine, fentanyl and crystal methamphetamine, and possession of the proceeds of crime over $5,000.

[2] These charges arise from drugs being located in a stolen car he was driving. There were two other occupants in the car, including one who fled the scene after being intercepted by the police.

[3] Mr. Debessay testified, denying any knowledge of the drugs in the car. He stated that he was offered a ride by an acquaintance, the person who fled the scene, after they ran into each other at a McDonald’s some distance away from their neighbourhood. He thought this person seemed intoxicated so offered to drive.

[4] The Crown argues that I can find beyond a reasonable doubt that Mr. Debessay had possession of the drugs in the vehicle. If I accept that possession has been established, the defence concedes that the quantities and other circumstances substantiate that it was for the purpose of trafficking.

Facts

[5] On January 20, 2023, Mr. Debessay was in the driver’s seat of a car when it was intercepted by the police after it was reported stolen. E.T. – a young person who is being tried separately as a youth – sat in the front passenger seat. Another male sat in the backseat, on the passenger side.

[6] When the police ordered them to step outside, the male in the backseat fled. The Accused and E.T. did not attempt to flee.

[7] A foot pursuit was unsuccessful, and the male who escaped was not identified by the police. During the pursuit, the police observed the male discarding items as he ran. This included almost 10 g of fentanyl and 20 g of crystal methamphetamine, as well as a digital scale.

[8] The car was ultimately searched by the police and substantial quantities of Schedule 1 substances were found inside the vehicle, including in the driver’s side door compartment, the back seat, and the trunk of the vehicle.

[9] More than 20 g of fentanyl was found in a “Mackage” jacket in the backseat of the car, which jacket is said to have belonged to E.T. No drugs were found in the “Moose Knuckles” jacket that belonged to the Accused, which was also located in the back seat of the car.

[10] No drugs were located on Mr. Debessay. However, a quantity of cash was located on him, in the amount of $5,855.

[11] Mr. Debessay testified in his defence. He was 19 years old at the time and in university. During the summer break, he worked a minimum wage job at a food chain where he also made cash tips.

[12] Mr. Debessay explained that on January 20, 2023, he went out to play basketball at the community center where he regularly plays. There, he met E.T. who he knew as a lifelong friend. They grew up in the same neighbourhood of St. James Town where these events took place.

[13] After playing basketball for a few hours, he and E.T. went to see a movie at Rainbow cinema, near Front St and Jarvis. They took an Uber to get there. After the movie, they decided to go eat at a McDonalds nearby.

[14] They sat to eat when the male who came to be the third occupant of the vehicle arrived and sat with them. He was an acquaintance. Mr. Debessay identified him as Cad, but said he goes by “C.C.” Mr. Debessay testified that he only knows him from having encountered him at basketball games at the Wellesley community center. He had only known him for a few years and did not know where he lived or what his last name was. Cad was older than him and E.T.

[15] Mr. Debessay explained that Cad sat down with them to eat. After they were done, Cad offered them a ride back to their neighbourhood. Mr. Debessay had concerns about Cad driving as he seemed intoxicated to him. He explained that he was slower than usual – that is when he would encounter him playing basketball – and his breath smelled of weed and a bit like alcohol. He therefore said he would drive and Cad handed him the keys. Cad sat in the back seat. He explained that E.T. sat in the front seat because Cad seemed to be feeling a bit sick, and E.T. was his friend so he wanted him to sit in front.

[16] Mr. Debessay explained that he was headed to their neighbourhood so didn’t need directions to get there. He drove up Jarvis and expected that he would be directed to Cad’s parking spot once in the neighbourhood. After driving for maybe 5-10 mins and being halfway home, the Accused says he pulled over on Jarvis in order to connect music to the car’s sound system. He did not recall whose phone was being used to connect to the music. He testified that they had been stopped for less than 5 minutes when a police car pulled up behind them.

[17] The Accused, as the driver, was asked for his driver’s license and informed that the car was reported stolen. He stated he was unaware of this and retrieved his driver’s license from his jacket which he had handed to Cad in the backseat when he first entered the car. It is agreed that of the two jackets seized from the backseat that evening, his was the Moose Knuckles jacket which contained a temporary driver’s license and no drugs. The other jacket in the backseat that was said to belong to E.T. was the one that contained a quantity of fentanyl. The male who fled was wearing a jacket when he fled.

Positions and the Law

[18] The main issue in this case is whether Mr. Debessay had possession of the drugs found in the car he was driving on January 20, 2023. I must also determine whether the Crown has proven that the cash found on his person was proceeds of crime.

[19] Given that the Accused did not have physical custody of the drugs, the Crown seeks to prove his constructive (s. 4(3)(a)(ii)) or joint possession (s. 4(3)(b)) of the drugs. It points to several considerations in support of that submission.

[20] As set out by the Supreme Court in R. v. Morelli, 2010 SCC 8, at para. 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 another person" . . . 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. [See also s. 2(1) of the CDSA, which incorporates s. 4(3) of the Criminal Code].

[21] Knowledge and control are the essential components of possession: R. v. Bains, 2015 ONCA 677, at para. 155.

[22] The defence argues that I should have a reasonable doubt regarding the Accused’s possession of the drugs.

[23] Both parties agree this is a circumstantial evidence case as it relates to possession and that, the Accused having testified, the principles set out by the Supreme Court in R. v. W.D. apply. That is:

If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him.

Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit.

Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.

Analysis

[24] To establish possession, the Crown points to several pieces of circumstantial evidence including the fact that:

(1) Mr. Debessay was the driver of the car and therefore had significant control over it. He also made use of other parts of the car by virtue of his jacket being in the back seat;

(2) He would not be entrusted with a quantity of drugs that had a street value of at least $14,000, without having any knowledge of it;

(3) He was in very close proximity to the drugs found in the driver side door for several minutes, and there was evidence that one of the bags of drugs in that door was in plain view; and

(4) He had a significant amount of Canadian currency on him, which was consistent with being proceeds of crime.

[25] As for Mr. Debessay’s version of events, the Crown argues that I should entirely discount it, pointing to the following discrepancies and implausibilities:

1. Mr. Debessay did not know why there would have been drugs in E.T.’s jacket. He did not know him to use or traffic drugs, despite knowing him since childhood.
2. He testified he barely knew Cad, having only played basketball with him. He also implausibly stated that he never saw or heard from him again after this incident.
3. He was inconsistent about how he ended up driving the car.
4. He was inconsistent about whether Cad conveyed that he was feeling sick as opposed to it being an impression he had, and about how Cad came to sit in the back seat as a result.
5. The fact that several officers did not manage to catch Cad when he fled belies the suggestion that he was feeling unwell.
6. His story about why the car was stopped on Jarvis Street when the police intercepted it – to connect to music – is implausible and does not accord with what can be seen of the interior of the car on the Body Worn Camera (BWC) footage, as it relates to cables and any screen.
7. The implausibility of the currency being his earnings from gambling 4-5 days prior, in particular given his account of having left the money in his jacket on a bench while he played basketball for several hours. The money was then moved to his pants and was in two separate bundles when searched by the police.
8. Mr. Debessay also stated that he did not leave the money at home so that his parents wouldn’t find it and get upset because he was gambling, yet he testified that he doesn’t lie to his parents.

[26] The Crown also points to statements made and not made by the Accused upon being detained by the police. However, there was no admission that these statements were voluntary and no voluntariness hearing was held for that determination to be made. I also fail to see how I can rely on what the Accused did not say to the police upon being investigated, given his right to silence in those circumstances. With few exceptions, such as where an alibi defence is raised, silence cannot be used to incriminate an accused or to impeach an accused’s credibility: see R. v. Guillemette, 2022 ONCA 436, at paras. 36-37, 44.

[27] In my assessment, the Accused generally came across as credible. He was not evasive and answered the questions asked of him in a straight-forward manner, despite the occasional hesitation. There were limited inconsistencies in his evidence and these related to more minor points such as whether he initially accepted or rejected the ride from Cad and whether he suggested that Cad sit in the back or Cad went to the back of his own accord.

[28] I agree, however, that there are serious implausibilities in his version of events. In particular, I find it implausible that although he used to see Cad 4-5 times a week when he played basketball at the community center, he has had zero contact with him since. His explanations for why the car was pulled over on Jarvis Street and why he had such a significant amount of cash on him are also implausible.

[29] Despite its flaws, however, I cannot characterize the Accused’s version of events as far-fetched and I cannot entirely exclude it.

[30] Some evidence does tend to support his account. For instance, he had a phone in his own pocket, which makes it more plausible that another cell phone located in the driver’s door was not his. Most significantly, the evidence that supports Cad’s knowledge and control of the drugs inside the car tends to support Cad’s association with the car and thereby the plausibility of the Accused’s version in that regard. Cad fled the vehicle upon it being intercepted by the police, and was the only one to even try to do so. As he fled, he discarded drugs and drug paraphernalia. Some drugs were also located in plain view in the backseat, where he was sitting. By contrast, none were located on the Accused or in his jacket.

[31] The Crown certainly raised several good points tending to discredit Mr. Debessay’s account. While I am not bothered by the minor inconsistencies that simply rendered parts of his account less reliable, I cannot accept the more implausible aspects of his version. But neither can I entirely discount his version. His account of how he came to drive the car is not fanciful, based on the totality of the evidence.

[32] Given his account of how he found himself in the driver’s seat of the vehicle, I have a reasonable doubt about his control over the drugs in the car, if not his knowledge of them.

[33] I appreciate that Mr. Debessay was the driver of the car when it was intercepted. While that fact, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, in my view this is not one of them. There is no presumption that the driver or operator of a vehicle has control over its contents: R. v. Lincoln, 2012 ONCA 542, at para. 3.

[34] As in R. v. Rahman, 2017 ONSC 1246, Mr. Debessay was not the sole occupant of the vehicle. The car did not belong to him, nor was there any evidence otherwise tying him to the car. The evidence of knowledge of drugs in the car by the other two occupants, and by Cad in particular, was stronger than it was against Mr. Debessay. I therefore accept as plausible the fact that Mr. Debessay did not have primary control of the vehicle that day, even though he was the one driving it.

[35] The Crown pointed to the fact that Mr. Debessay had the keys to the car, and had the authority to decide who entered the vehicle or not. I do not accept that he necessarily had that control in the particular circumstances of this case. On Mr. Debessay’s version, he was only temporarily driving the vehicle and had no authority over it. The person who did, Cad, was still in the vehicle, and he would have continued to be the one who exercised control over who could enter and under what circumstances. This is unlike the findings made in R. v. Smith, 2024 ONSC 1482, at para. 39.

[36] Similarly, while it can generally reasonably be inferred that a valuable quantity of drugs would not be entrusted to anyone who did not know about them (Bains, at para. 157; R. v. Bryan, 2013 ONCA 97, at para. 11), the Crown has not proven that Mr. Debessay was in fact entrusted with the drugs or the vehicle in the case at bar. He was merely entrusted with driving the vehicle from one location to another. The car remained in Cad’s possession and control.

[37] The fact that the person said to have had control over the vehicle was present in the vehicle, and not in some other location, is thus a key factor that distinguishes this case from others where the accused is the driver and sole occupant of the vehicle.

[38] Certainly, if drugs are in plain view in the vehicle, that can significantly impact the analysis even in the circumstances of this case.

[39] Here, on Mr. Debessay’s account, he only accessed the front driver area, having handed his jacket to Cad in the back when he entered the car. I accept that the Ziplock bag that contained small packets of cocaine was protruding from the driver’s side door compartment when Mr. Debessay was sitting in the front seat. Indeed, this is visible to some extent on the BWC footage filed as Exhibit 3. However, it does not appear that the drugs inside the bag could necessarily be seen.

[40] Officer Walker testified he saw a plastic bag and a cell phone in the driver side door when he peered in through the front passenger window. He had suspicions that it could contain drugs given that it was a baggie – he accordingly told Officer Fereira there were possibly some drugs there. He could not recall whether he could see through the bag.

[41] Officer Fereira testified that he also saw the bag upon peering into the vehicle from the driver’s side. However, he described it as being shoved inside the panel and not hanging out of it.

[42] Finally, Officer Scheffer did not see the bag or any other drug paraphernalia when he first glanced into the car through the driver side door with his flashlight. Although he only looked for a few seconds, he did confirm that his visual search included the door panel.

[43] What is clear is that what was protruding was the top of the Ziplock bag. Its contents may or may not have been readily visible to an observer in the front seat. Mr. Debessay was also in the vehicle at nighttime, when it was dark out.

[44] As such, while there was some evidence that one of the bags was partially in plain view, it was not so prominent and its contents were not necessarily visible including to the driver. It is therefore not impossible that Mr. Debessay did not see it or clearly identify its contents during the relatively brief amount of time he was in the car. That time approximated 10 to 15 mins and is not insignificant, but if one accepts his account, Mr. Debessay would not have had reason to pay special attention to items in a car that was not his and that he was only temporarily driving.

[45] Certainly, the currency found in the Accused’s pocket in this case is incriminating. He was a university student at the time and although he worked part time, that was a lot of cash for a person of his age and circumstances. The Accused admitted as much. He claimed the money was casino winnings and he carried it on him that day – despite not having gone to the casino that particular day and despite having played basketball and thereby having left this money unattended for a period of time – because he did not want his parents, whom he resided with, to find out about his gambling.

[46] This explanation is dubious, but I cannot exclude it beyond a reasonable doubt. Although the money was found in two bundles, Officer Scheffer testified that one of them was of $15. The bulk of the money therefore appeared to have been together in the one pant pocket. I also cannot necessarily find Mr. Debessay’s efforts to hide something from his parents to be inconsistent with his testimony that he wouldn’t lie to his parents. An overt lie is different than attempting to conceal something.

[47] In R. v. Duvivier, 2010 ONCA 136, the fact that the appellant, who was found in the passenger seat, was found in possession of small denominations, weighed significantly in the balance in convicting him. But most significant was the fact that the drugs were more clearly in plain view between him and the driver. The accused in that case also did not testify. See paras. 4-9.

[48] Ultimately, I find that Mr. Debessay very likely knew about the drugs in the car (or was at minimum willfully blind), at least those in the driver’s side door, but I cannot be sure to the requisite standard. More significantly, even if knowledge had been established, this case falls short on control, as in R. v. Lights, 2020 ONCA 128, at paras. 104-106.

[49] I also cannot find beyond a reasonable doubt that Mr. Debessay was involved in a joint venture with either or both Cad and E.T. While the evidence of E.T.’s involvement is stronger than against Mr. Debessay, given the drugs located in his jacket, I cannot exclude the possibility that Cad placed those drugs there as he ran off and made other attempts to divest himself of the drugs on his person, or that E.T. had some drugs on him but was otherwise not connected to the drugs in Cad’s possession and control. Either way, I cannot find beyond a reasonable doubt that Mr. Debessay was involved in what appears to have been Cad’s operation. I cannot find that he consented to Cad’s possession of the drugs.

[50] In Bryan, at para. 12, the cell phone that the appellant had used was ringing continuously during the interval when he was detained by the police at the roadside. The Crown pointed to similar evidence in this case, but that evidence related to a cell phone in the driver’s door that did not necessarily belong to the Accused. Indeed, the Accused had his own phone on him when he was arrested by the police.

[51] The Crown argued that Mr. Debessay at least could not have ignored or been unaware of the phone next to him in the driver side door, especially given that it appeared to have been turned on and receiving messages. However, the evidence was unclear in that regard (whether the phone was on, when exactly the texts later captured on photo were in fact sent, and in any event, which way the phone was facing in the driver’s panel – whether it was facing the Accused or not).

[52] Mr. Debessay, E.T. and the person identified as Cad were most likely all trafficking drugs together on January 20, 2023. But that is insufficient to ground a criminal conviction.

[53] In the particular circumstances of this case, and given the Accused’s testimony which I cannot entirely discount, I cannot find beyond a reasonable doubt that Mr. Debessay had knowledge of the drugs in the car, and even less so that he had control over them.

[54] The Accused is acquitted on all counts.

Released: September 12, 2024 Signed: Justice Mainville