ONTARIO COURT OF JUSTICE DATE: 2024 09 20 COURT FILE No.: 22-10002433-02 22-10002434-00 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
DOMINIC D’ANGELO WRIGHT
Before Justice H. Pringle
Heard on August 19, 20, 21, 2024 Reasons for Judgment released on September 20, 2024 [1]
Eric Gilman.......................................................................................... counsel for the Crown Melina Macchia............................................................................. counsel for the accused
PRINGLE J.:
OVERVIEW OF THE CASE
[1] Dominic Wright stands charged with offences on two separate informations: one alleging CDSA-related offences [2] , the other alleging Criminal Code (CCC) offences. He pled not guilty to all counts.
[2] Following a Garofoli application, the defendant held a contested trial primarily focused on the CDSA-related offences. No submissions were advanced on the CCC information. The outcome of those charges is found at para. 87.
[3] There were four CDSA-related offences alleged to have been committed on April 7, 2022:
- Possession of a schedule I substance [3] for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
- Possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
- Possession of proceeds of crime over $5000, contrary to s. 354 of the CCC;
- Possession of proceeds of crime under $5000, contrary to s. 354 of the CCC.
[4] These counts pertain to evidence seized by police at a condo unit and pursuant to search warrant. More specifically, the following illicit items were found inside the target unit:
- Loose bullets, a loaded overcapacity magazine, $20,700 cash, and 2.93 grams of fentanyl inside a reusable shopping bag;
- Seven ziplock baggies of fentanyl, totaling 260 grams, in a reusable shopping bag inside a clothes dryer;
- 4.32 grams of powder fentanyl in a clear plastic baggie, in a green plastic bag in a kitchen cupboard above the fridge, along with two measuring cups with white powder residue, a spoon with white powder residue, and a scale labeled “Diablo Fusion”.
[5] Mr. Wright was arrested, in the hallway outside the target unit, at least five minutes before the search warrant was executed. The following illicit items were found on his person:
- a loaded FN 5-7 handgun inside his vest;
- 47 pills of oxycodone in a plastic pouch;
- 5.41 grams of purple MDMA;
- $3025 in cash.
[6] The salient issue at trial was whether Mr. Wright was proven, beyond reasonable doubt, to have been in constructive possession of the controlled substances and cash inside the unit. He did not contest conviction relating to items found on his person.
SUMMARY OF POLICE SEIZURES [4]
[7] The search warrant was executed at an apartment/condo located at 25 Greenview Avenue. Fentanyl was located in three different locations inside. The unit had two bedrooms, a small kitchen, a living room area, and a bathroom. The unit had a parking spot assigned to it, as per a taped-up information sheet for short-term renters.
[8] Mr. Wright was arrested in the hallway, shortly before the search warrant was executed. He was steps away from the target unit, having arrived at the building by car at approximately 6 am. He had keys on his person, one of which unlocked the target unit.
[9] He also had on him the loaded firearm, 47 oxycodone [hereinafter “oxy”] pills, 5.41 grams of MDMA [5] , and $3025 in cash. He was not in physical possession of any fentanyl, heroin, or cutting agents.
[10] Police took Mr. Wright down in the hallway close to the target unit, a process that took at least five minutes. The whole five-minute takedown was captured on surveillance video, and I found it must have caused some commotion. Police physically took him to the ground, got him under physical control, searched him, found a gun, no doubt voiced [6] that out loudly enough for all officers present to hear, used their radios for communication, and were speaking to each other and Mr. Wright.
[11] When police entered the target unit, they found NRK inside bedroom #2. She was in bed, but it is unknown whether she was asleep or awake at the time. Her black patterned purse was located in some unknown place in the unit. It held identification, car keys, and banking cards.
[12] NRK’s health card was also found somewhere inside the unit, but the seizing officer could not recall precisely where. From the SOCO photos, it is distinctly possible that NRK’s purse and/or her health card were located on a kitchen counter, near some ice cube trays and a fake driver’s licence with Mr. Wright’s picture.
[13] Bedroom #2, where NRK was located, had a walk-in closet. Its contents suggested a male and female both used it to store clothes. In addition to clothes, police found a plastic reusable shopping bag containing seven .380 calibre bullets, $20,700 in cash, a loaded FN 5-7 overcapacity magazine (conceded to be a prohibited device), women’s underwear, fake eyelashes, a covid mask, and 2.93 grams of fentanyl in two small grey torn-off baggies.
[14] In between the two bedrooms was a small laundry closet, accessible from the unit’s hallway. Police found the laundry closet door open, making a stacked washer and dryer unit visible.
[15] Inside the dryer was a sweater, track pants, and a red cloth reusable Metro shopping bag. Inside the Metro bag was a white plastic bag containing 7 clear ziplock baggies. Each baggie contained approximately 37 grams of purple fentanyl, totaling 260 grams.
[16] More fentanyl was found in the small kitchen. More specifically, a ziplock bag with white powder fentanyl was in a cupboard above the fridge. It was found stored in a green bag, along with a small digital scale, two measuring cups with white residue on them, and a spoon with white residue on it.
[17] Another cupboard, next to the fridge, held multiple bottles of hydrocodone prescription cough syrup. Many of the prescription labels were ripped off. Other bottles had no prescription label, but appeared to be larger bottles from which prescriptions were filled. That same cupboard contained a cloth bag labeled “That’s a awful lot of cough syrup”.
[18] An opioid overdose warning label was visible on two of the hydrocodone cough syrup bottles. A few more hydrocodone bottles sat out in the open, on the kitchen counter and the stovetop.
[19] Two functioning airsoft pistols were found somewhere in the living room. Thrown over a chair was a Lanvin sweater/jacket, which matched exactly to a sweater/jacket that Mr. Wright had previously worn [7] . The coffee table had what appeared to be a rolling tray on it. The tray was purple with words on it. They read, “That’s a awful lot of cough syrup”.
[20] While the entire residence was searched, only items of police interest were brought to my attention. I understood this to be any items relevant to drug possession, firearm possession, or residency within the unit. I could not rule out, from the breadth of the concept of “items of police interest”, that NRK possessed her own set of keys to the unit.
[21] There was no forensic evidence to assist with the issue of possession of any item. In particular, fingerprint analysis of the ammunition and drug packaging proved inconclusive.
[22] All the controlled substances were adulterated, but in some different ways:
| WEIGHT AND PACKAGING | LOCATION FOUND | CONTROLLED SUBSTANCES IN PACKAGE | FDA SUBSTANCES DETECTED | OTHER |
|---|---|---|---|---|
| 36.92 grams ON2021759 | DRYER | Diacetylmorphine (heroin); Fentanyl | Xylazine or its salts | Dimethylsulphone and caffeine |
| 37.07 grams ON0201758 | DRYER | Diacetylmorphine (heroin); Fentanyl | Xylazine or its salts | Dimethylsulphone and caffeine |
| 37.09 grams ON0201730 | DRYER | Diacetylmorphine (heroin); Fentanyl, and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 37.43 grams ON0201731 | DRYER | Diacetylmorphine (heroin); Fentanyl; and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 37.35 grams ON0201732 | DRYER | Diacetylmorphine (heroin); Fentanyl; and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 37.50 grams ON201733 | DRYER | Diacetylmorphine (Heroin); Fentanyl; and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 37.42 grams ON201734 | DRYER | Diacetylmorphine (Heroin); Fentanyl; and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 1.47 grams ON201735 | BDRM #2 | A morphine derivative (Acetylmorphine); fentanyl; and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 1.46 grams ON201736 | BDRM #2 | A morphine derivative (Acetylmorphine); fentanyl; and a benzodiazepine (Flualprazolam) | Xylazine or its salts | Dimethylsulphone and caffeine |
| 4.32 grams ON201737 | KITCHEN | Diacetylmorphine (heroin); Fentanyl | Nothing noted | Nothing noted |
[23] No evidence was called about the nature of these additional controlled/restricted substances. There was no basis upon which I could rest reasonable inferences about, for example, the presence of Xylazine in almost all of the fentanyl seized.
[24] There was no evidence which connected the content of these illicit / controlled substances with hydrocodone or oxycodone. There was dimethylsulphone in almost all the fentanyl seized, as well as the MDMA the defendant had on his person. But I had no evidentiary basis upon which I could draw connecting inferences from that fact.
LEGAL PRINCIPLES ENGAGED
[25] Mr. Wright was in physical possession of illicit items. The Crown alleged he was also in constructive possession of controlled substances and money seized from the unit. He submitted the fentanyl and cash in the unit could have been in the joint possession of NRK, but that Mr. Wright was the centre of this alleged drug operation.
[26] By virtue of s. 2 of the CDSA, the definitions in s. 4(3) of the Criminal Code apply:
4(3)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 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.
[27] This section thus outlines three statutory means of possession: personal possession [s. 4(3)(a)], constructive possession [s. 4(3)(a)(i)(ii)], and joint possession [s. 4(3)(b)]. R. v. Lights, 2020 ONCA 128 at paras. 45-47, explained proof of both personal and constructive possession:
When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See, also, R. v. Beaver, [1957] S.C.R. 531, [1957] S.C.J. No. 32, at pp. 541-42 S.C.R.
When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.
Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused
(i) has knowledge of the character of the thing;
(ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and
(iii) intends to have the thing in the place for the use or benefit of the accused or of another person.
[Morelli, at para. 17]
[28] In other words, constructive possession is made out by proof of subjective knowledge of (i) and (ii) and a measure of control over the item.
[29] Joint possession is made out by proof of knowledge, consent, and a measure of control by the person alleged to be in possession: R. v. Pham, (2005), 77 O.R. (3d) 401 at para. 16; R. v. Terrance, [1983] 1 S.C.R. 357. Mere passive acquiescence will not suffice to ground a finding of joint possession: R. v. Bromfield, 2017 ONCJ 27.
[30] Worth noting is the fact that possession cannot be presumed from residency, tenancy, or occupancy of a place: Lights, supra, at para. 50; R. v. Choudhury, 2021 ONCA 560 at para 19. Those factors may still be relevant, however, in the assessment of the evidentiary record as a whole. They were, in the case at bar.
[31] The burden to prove possession beyond reasonable doubt rests upon the Crown. With respect to illicit items found inside the unit, the Crown’s case is entirely circumstantial. The principles from R. v. Villaroman thus apply. As per R. v. Brown, 2023 ONSC 901 at paras. 67-68:
In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Supreme Court of Canada gave guidance as to the approach to be taken in cases that rely heavily on circumstantial evidence. The Court directed, when the Crown's case is based on circumstantial evidence, that "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": Villaroman, at para. 38.
Villaroman went on to hold that reasonable alternative inferences to guilt need not be based on proven facts. They need only be plausible based on logic and experience as applied to the evidence (at paras. 35-37):
In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. . . . Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[32] As per Villaroman, supra at para. 37,
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies] and "other reasonable possibilities" which are inconsistent with guilt. . . . I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". . . . "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation [internal citations omitted].
[33] The evidentiary record must be assessed as a whole, not piecemeal. A trier of fact must not independently assess pieces of evidence against the standard of proof beyond reasonable doubt. That is not to say that evidence, or the absence of evidence cannot be independently considered. As per R. v. Chu, 2023 ONCA 183 at para. 11,
The fact that the trial judge addressed the weaknesses of particular areas of evidence does not indicate that the sum total of her analysis was looking at individual pieces of evidence in isolation. As this court recognized in R. v. Ceballo, 2021 ONCA 791, 408 C.C.C. (3d) 70, at para. 32, it is often necessary to consider the significance of individual pieces of evidence before their cumulative effect can be considered.
[34] In the following paragraphs, I have assessed independent pieces of evidence, as well as the absence of evidence on some points. I have instructed myself, and remain cognizant, that the evidence is to be assessed as a whole when measured against the Crown’s burden of proof.
APPLICATION OF LEGAL PRINCIPLES TO FACTS
[35] No evidence was called about who owned or leased the target unit. A taped-up information sheet linked this unit to short-term rental use. For example, it contained tourist recommendations, contact information for the rental company, and a prohibition against using the unit as a mailing address.
[36] But there was no direct evidence about any specific person leasing the target unit, short-term or otherwise, at the time of the search warrant. On this evidentiary record, I could not conclude that Mr. Wright and / or NRK were officially renting this unit at all. But no matter who leased this unit, I found that both the defendant and NRK stayed there regularly during the relevant timeframe.
[37] The surveillance footage was an integral part of this conclusion. Both persons came and went to and from the target unit, together and independently, using keys to gain entry and to lock up. Both were in possession of keys to the unit on different days. Possibly there were one set of keys shared between the two. Possibly each had a set of keys.
[38] This latter inference was supported by video from April 5th, where NRK exited the elevators alone, and used a key in her possession to let someone waiting into the unit. I had no difficulty finding that the person alone in a bedroom with over $20 000 cash on April 7 was the same person trusted to permit someone access to the unit on that prior occasion.
[39] I had no difficulty finding the female on the video clips was the same person each time. This was based on observations of body shape, hair style and length, footwear (both worn and observed by the door during the search), facial features when visible, items carried on more than one occasion including a Ruth Chris bag and a dark purse quite similar to NRK’s purse found during the search.
[40] On that same occasion, NRK was carrying a package of pop bottles and a grey shopping bag. She appeared to be returning to the unit with a small amount of supplies. Another time, NRK and Mr. Wright returned to the unit together with bags, including two carry-out bags from Ruth Chris Steakhouse [8] . They were clearly occupying the unit, including eating some meals there.
[41] Although the surveillance video [9] showed visitors to the unit, they only entered if Mr. Wright or NRK keyed them inside. Clearly, Mr. Wright and NRK controlled access to the target unit during the relevant timeframe.
[42] The defendant was using the building’s parking garage to store his car. Police observed him using a visitor’s spot to keep his Tesla in. The unit had an assigned parking spot, according to the rental information sheet. There was no evidence about whether that assigned spot was being used or not.
[43] But no matter where Mr. Wright parked his car, he was in regular, consistent possession of keys to the unit and, I found from the garage surveillance video, also possessed a fob to gain access to the basement elevator foyer.
[44] On the date the search warrant was executed, police observed Mr. Wright arriving at the building at approximately 6 am. He parked his car inside the building’s garage. He used a fob, I found, to get into the elevator foyer.
[45] He was in possession of keys to open the unit door. NRK was inside that unit, in bed, and it was very early in the morning. The defendant was clearly not a casual visitor to the unit. He was a trusted occupant.
[46] There were multiple pairs of shoes, both male and female styles, at the entrance to the unit. The walk-in closet contained male and female styled clothing. There were items of clothing inside the unit that the defendant had been seen wearing, on video, on prior occasions. His Lanvin sweater/jacket was draped over a chair in the living room. On April 4, surveillance video captured him wearing the same sweater/jacket. A black and grey camo mask he was seen wearing on April 5 was found on the kitchen counter.
[47] There were links to clothing worn by the defendant, on different dates as seen on video. On multiple days, including the date of arrest, he wore the same dark baseball cap with a double-M etched in white on the front.
[48] On April 4 and 5, he wore the same puffy vest and a satchel, similar to the one he carried on the date of arrest. Also on April 5, the individual the Crown submitted was Mr. Wright was linked, by video, to Mr. Wright’s Tesla. I had no difficulty in concluding that the male on video, keying in and out of the unit at times, was Dominic Wright.
[49] On the evidence as a whole, I found that during the relevant timeframe, Mr. Wright and NRK were using the target unit as their residence, temporary or otherwise. While there were a few visitors, I found Mr. Wright and NRK were the only occupants.
[50] I suspect this was a temporary residence, given one unused bedroom and the posted short-term rental information sheet. But I could not find this as fact, given the absence of evidence about who owned or leased the target unit.
[51] The target unit may have been a temporary residence, but it was also clearly the current base for a drug trafficking operation – at least in its kitchen. Any entry into that small kitchen would quickly reveal that fact. When police arrived, there were 3 empty hydrocodone bottles sitting in plain view on top of the stovetop. There were approximately 15 more prescription hydrocodone bottles, filling up one shelf and spilling into a second, in a cupboard next to the fridge.
[52] Some were from out of jurisdiction [10] pharmacies, some of the labels were ripped off, some appeared to be larger bottles pharmacies use to fill prescriptions. The Crown described these as having contained “oxy liquids”. There was evidence of this. Opioid overdose warnings were visible, in the SOCO photos, on two of the bottles.
[53] There were far too many bottles there for the hydrocodone to have been for personal use. Ripped-off and out of jurisdiction prescription labels both furthered a logical inference that hydrocodone had been obtained and used in some illicit way. No person could use that small kitchen and not reasonably be aware it was part of a drug trafficking operation.
[54] The hydrocodone cupboard also had packaging, or a bag, that was labeled “That’s a awful lot of cough syrup”. The words on the purple rolling tray matched the wording on this package down to the grammatical error.
[55] This rolling tray was in plain view in the living room, while its matching packaging was in the same cupboard as the multiple hydrocodone bottles. This also reasonably assisted to support an inference that the unit’s occupants knew the contents of that kitchen cupboard.
[56] Next to the hydrocodone cupboard was another cupboard with fentanyl. More specifically, it had a green bag containing powder fentanyl, powder-covered mixing cups, a powder-covered spoon, and a digital scale. The only reasonable inference from the powder fentanyl and paraphernalia used to mix powder substances was that the kitchen was being used to prepare illegal drugs for sale.
[57] I accepted the defendant’s fake driver’s licence, an item of some value and importance, was located in that small kitchen. So, too, was the cloth camo mask that surveillance footage showed the defendant wearing on a prior date. A picture showed the mask on top of that driver’s licence, on a counter and next to an ice cube tray.
[58] Mr. Wright was not only regularly staying at this unit. He had been inside the kitchen recently and felt comfortable leaving personal items there. When arrested, he was in physical possession of oxycodone, an opioid, for the purpose of trafficking. The cupboard was littered with empty bottles of opioid medication (albeit not oxycodone). The powder fentanyl and used mixing paraphernalia were in close proximity.
[59] I considered the hypothetical that NRK was using the kitchen to prepare drugs for sale without Mr. Wright’s knowledge. I rejected that hypothetical as entirely unrealistic and unreasonable, on the evidence as a whole. I found the only reasonable inference was that Mr. Wright was in constructive possession of the powder fentanyl and paraphernalia in the kitchen. The live possibility of NRK’s joint possession was entirely consistent with Mr. Wright’s constructive possession.
[60] Bedroom #2, I found, was being used by both NRK and the defendant to sleep in. There were two electric toothbrushes in the bathroom, an object people leave where they stay overnight. A pack of Belmonts, the same brand Mr. Wright physically possessed when arrested, was on the bedside table. The walk-in closet had female and male styled clothing in it.
[61] Mr. Wright was arriving at 6 am, an odd time for a social visit. NRK was in bed at the time. The two of them were obviously in a relationship of some trust.
[62] Bedroom #2’s walk-in closet contained almost $21 000 in cash as well as a small amount of fentanyl, loose ammunition, and an over-capacity magazine. I found the bag was regularly being used to store illicit items, and that both persons using bedroom #2 knew this fact. There were items stored in that bag that could link to a female, such as female-style underwear and false eyelashes.
[63] There were also items stored inside the bag that linked to the defendant. For example, the overcapacity magazine was an FN 5-7. The defendant possessed an FN 5-7 firearm. The overcapacity magazine was loaded with the same caliber ammunition that the defendant’s firearm was loaded with. This meant, Det. Stolf testified that the FN 5-7 overcapacity magazine in this bag was suitable for use in the FN 5-7 firearm the defendant possessed.
[64] Constructive possession of the illicit items in the bag was not an either/or situation. That walk-in closet was being used by both the defendant and NRK. They both knew the fentanyl was there, that the magazine was there, that the bullets were there, and that a significant amount of cash was there. They both had a measure of control over the contents of that bag.
[65] The presence of almost $21 000 cash in a readily discoverable location was of import. As stated previously, I found only the defendant and NRK stayed at the unit during the relevant timeframe. I found the defendant and NRK were using bedroom #2 to sleep in. I found both the defendant and NRK were regularly using that closet to store personal items in.
[66] I rejected, as unreasonable, the notion that some other visitor left over $20 000 in cash in the closet of bedroom #2. That illicit cash belonged to the defendant, NRK, or both. The only reasonable inference, I found, was that both of them knew what was in that bag, in their shared closet, in their shared bedroom.
[67] If this cash belonged to the defendant, he trusted NRK not to take it in his absence from the unit. If the cash belonged to NRK, she trusted the defendant not to take it when he returned and while she was in bed. Either way, both parties knew they could trust each other with a large amount of cash left in a readily-discoverable location.
[68] I found this was because they both knew the cash was there and that it was drug trafficking proceeds. Again, both clearly had a measure of control over that cash and all the items inside the bag, including the fentanyl.
[69] This conclusion was based on a consideration of all the evidence as a whole, but some items the defendant personally possessed bore specific probative force worth referring to. He was in physical possession of a loaded FN 5-7 firearm. The overcapacity FN 5-7 magazine in the closet was, as per Det. Stolf’s testimony, suitable for use in the defendant’s FN 5-7 firearm. The bullet loaded in that overcapacity magazine was the same caliber as was loaded in the defendant’s FN 5-7 firearm.
[70] While there were loose bullets of a different caliber in the bag, there was no other firearm discovered on the premises or on NRK. I found the only reasonable inference, on all the evidence, was that the defendant was in constructive possession of that overcapacity magazine.
[71] The $20 700 in the closet was all in cash. The defendant had physical possession of $3025 when arrested at 6 am, all in cash. Given the 47 oxycodone pills and loaded firearm he was also carrying at the time, his cash was obviously proceeds from drug trafficking.
[72] Specific to the charges against the defendant, the only reasonable inference was that he was in constructive possession of the contents of the bag inside the closet: the $20 700, the fentanyl, the bullets, and the magazine.
[73] I could not rule out NRK being in joint/constructive possession of the items of that bag, but that inference remained entirely consistent with Mr. Wright’s guilt. I assessed other hypotheticals, including that NRK alone knew the contents of that bag, but found none reasonable.
[74] I found that the Crown’s case fell short of the burden of proof with respect to the fentanyl in the dryer. I gave this issue anxious consideration. I assessed it in the context of the evidence as a whole, multiple times. Each time, I concluded I could not rule out a reasonable hypothetical inconsistent with guilt.
[75] I did not accept that some random visitor dropped off such a valuable quantum of fentanyl and left it in the dryer. But unlike the fentanyl in the kitchen cupboard and in the walk-in closet, there was nothing linking Mr. Wright to the “dryer fentanyl” except:
- He was a regular occupant of that unit at the relevant time;
- He was in constructive possession of fentanyl and proceeds elsewhere in the unit;
- He was an active drug dealer who carried a loaded firearm to protect himself and his business.
[76] I found myself troubled by the notion of the dryer as a regular place to store a large, valuable amount of drugs. There was a real risk that storing drugs in a dryer could result in their damage or destruction. I could not rule out that the bag of purple fentanyl had been hastily, temporarily stashed in that dryer for lack of a better option.
[77] More specifically, I could not rule out that NRK, about whom I know nothing, heard commotion outside the unit and tried to hide the purple fentanyl. The dryer appeared to be a temporary storage place. The defendant’s take-down took at least five minutes and would have caused some commotion right outside the target unit. The closet door to the laundry area was open when police entered. NRK was in bed at the time, but I had no evidence about whether she was awake or asleep.
[78] Even if that happened, it is still possible that Mr. Wright was in constructive possession of the fentanyl in the dryer. Indeed, it is probable. But I had no concrete basis upon which to conclude, to the exclusion of all other reasonable hypotheticals, that he knew of the presence of the “dryer fentanyl” in the target unit.
[79] Again, I know nothing about NRK or why she could not be a fentanyl dealer. I could not rule out her joint/constructive possession of fentanyl elsewhere in the unit. There was no evidence when that Metro bag was brought into the unit, leaving open the possibility that NRK brought it in while the defendant was out on April 6-7.
[80] There was a realistic possibility that the dryer was a temporary storage location. There was no forensic evidence to assist with who put the fentanyl in there. Unlike the kitchen and the walk-in closet, there was no evidence connecting the defendant’s personal items to that dryer or to the storage of items in that laundry closet. There was no evidence that the dryer was being used, regularly, to store illicit items.
[81] There was no link between the closet fentanyl, the kitchen fentanyl, and the dryer fentanyl. The dryer fentanyl was purple. It was chemically different from both the kitchen and the closet fentanyl. While some of the packaging was similar, it was all generic ziplock baggie-type packaging.
[82] This conclusion is hardly an exoneration of Mr. Wright. I certainly believe, on a balance of probabilities and more, that he was in constructive possession of the dryer fentanyl. But on application of Villaroman principles, I could not conclude beyond all reasonable doubt that his guilt was the only available, reasonable inference.
[83] Mr. Wright must be found guilty of the sole count of possession of fentanyl for the purpose of trafficking, in relation to fentanyl in the kitchen and in the closet. This conclusion cannot encapsulate the fentanyl inside the dryer.
[84] Finally, Mr. Wright did not contest guilt in relation to the oxycodone, the MDMA, the cash, and the loaded firearm. He was obviously in personal possession of these items. The presence of two controlled substances including a Schedule I opioid, a loaded firearm, and a large amount of cash made the inference of possession for the purpose of trafficking inescapable.
[85] Mr. Wright conceded being on a release order that prohibited him from possession of firearms, prohibited devices, cell phones, scales, and other drug paraphernalia. He was also subject to a house arrest restriction. On April 7, 2022, he was breaching that release order in multiple ways.
[86] I found him guilty of all counts of fail to comply release order, except for the count pertaining to cell phone use. The particularized wording of that bail condition and charge required, in my view, the Crown to prove the cell phone was capable of accessing the internet. The evidence did not establish this, and this aspect was not conceded by the defence. The defendant must thus be found not guilty of this count.
[87] On the Criminal Code information, Mr. Wright will be found guilty of counts 1 through 12. I expect submissions on the issue of Kienapple will take place as part of sentencing. He will be found not guilty on count 13. The Crown has withdrawn count 14. Mr. Wright, on the CDSA- related information, will be found guilty of counts 1 through 4.
Released: September 20, 2024 Signed: Justice H. Pringle