Ontario Court of Justice

Date: 2024 11 01 Court File No.: 23-48116973 Toronto Region

Between:

His Majesty The King

— And —

Deren Kenneth Akyeam-Pong

Before: Justice C. Faria

Heard on: August 12, 13, 15, 16, 2024 Reasons for Judgment released on: November 1, 2024

Counsel: Ryan Wilson, for the Crown Craig Zeeh, for the accused Deren Kenneth Akyeam-Pong

Faria J.:

I. Introduction

[1] On July 22, 2022, Daren Kenneth Akyeam-Pong was arrested and charged for possessing a stolen motor vehicle valued at over $5000, for possessing fentanyl and cocaine for the purposes of trafficking, and for possessing a loaded firearm with no licence to do so and storing it carelessly while on 3 weapons prohibitions. He was also charged with violating both a probation order and a release order. This was all contrary to ss. 354(1), 95(1), 92(1), 86(1), 733.1(1), 145(5), 117.01(1) of the Criminal Code, and s. 5(2) of the Controlled Drugs and Substances Act.

[2] The Crown called 2 civilian witnesses and a police officer at the trial, filed video evidence, photos, and 2 agreed statements of fact. Mr. Akyeam-Pong did not testify.

II. Factual Context

[3] Thomas Weldon owned a distinctively painted 2018 Dodge Challenger RT which was stolen on June 30, 2022, from where it was parked at the Roy McMurtry Youth Centre. He reported it stolen the same day. He had financed the vehicle for about $65,000 or so when he bought it in 2018. There were 2 keys for the vehicle, and he still has both.

[4] This stolen Dodge Challenger was located on July 22, 2022, on 14 Fifteenth Street in Toronto.

[5] Pursuant to an Agreed Statement of Facts II (Exhibit # 36), the parties agreed that inside the vehicle were the following controlled substances and cutting agents:

i. 0.22 grams of cocaine in a brown paper bag in the cupholder.

ii. 125.99 grams of diphenhydramine (Benadryl) in a clear plastic baggie in the centre console.

iii. 23.49 grams of orange/brownish balls of fentanyl in a clear Ziplock baggie on the floor of the rear driver’s side passenger area.

iv. A green “Henschel Supply Company” satchel in the rear driver’s side passenger floor with:

a. Receipts for an $88, 000 Rolex and documents in the front portion of the bag with Mr. Akyeam-Pong’s fingerprints and those of an unknown person.

b. In the main portion of the bag:

i. An infinity scale.

ii. 124.65 grams of diphenhydramine (Benadryl) in a clear Ziplock bag.

iii. 14.55 grams of purple fentanyl in a whitish bag.

iv. A container of blue food colouring.

v. A clear plastic bag that contained:

1. 57.35 grans of cocaine wrapped in a clear bag.

2. 3.42 grams of cocaine wrapped in a clear bag.

3. 27.24 grams of cocaine wrapped in a grey bag.

4. 13.55 grams of cocaine wrapped in a grey bag.

vi. A clear bag that contained:

1. 141. 80 grams of orange/brown fentanyl in a large Ziplock bag.

2. 241.51 grams of orange/brown fentanyl in a smaller Ziplock bag.

3. 331. 03 grams of white unknown substance in a white plastic bag.

4. 38.29 grams of purple fentanyl in a clear bag tied in plastic wrap.

c. In the trunk of the Dodge Challenger, the police found:

i. A green “Chalo Fresco” bag with 5 white bags and a brown “Farm Boy bag.

ii. Inside the Chalo Fresco bag were 5 bags with large amounts of caffeine and one with an unknown substance.

iii. The Farm Boy bag had three clear Ziplock bags with large amounts of caffeine, 2 bags with sugar powder, and an empty pill bottle.

[6] Pursuant to Agreed Statement of Fact I (Exhibit #35), the parties agreed that the total amount of narcotics seized from the Dodge Challenger and their estimated street value were possessed for the purpose of trafficking. The specific amounts and value were:

i. 459.14 grams of fentanyl worth between $48, 000 and $72, 000.

ii. 16.97 grams of cocaine worth between $800 to $1080.

iii. 84.59 grams of crack cocaine worth between $3900 and $4800.

iv. 3953.02 grams of caffeine, a cutting agent.

v. 250.64 grams of diphenhydramine (Benadryl), also a cutting agent.

[7] Also agreed to be fact is that Mr. Akyeam-Pong’s fingerprints were on the Dodge Challenger and on items inside the Dodge Challenger, specifically:

i. In the exterior side pillar about the driver’s side door of the Dodge Challenger and on the exterior driver side door small window.

ii. On the Rolex documents and receipts.

[8] There were fingerprints found on the passenger door, and the exterior driver door that were not identified to be any specific person or could belong to Mr. Akyeam-Pong or another person.

[9] In the upstairs bathroom of 14 Fifteenth St., the owner of the Airbnb found a key fob that opened the Dodge Challenger and a firearm hidden under a towel in a basket.

[10] The parties also agree:

i. The firearm is a Beretta nano 9mm Luger handgun.

ii. It was loaded with 6 rounds of 9mm Luger ammunition.

iii. The firearm was in proper working order and is a prohibited firearm defined by s. 84 of the Criminal Code.

iv. The seized 9mm Luger cartridges were analysed and found to be in working order and defined as ammunition in s. 84 of the Criminal Code.

[11] The Centre of Forensic Sciences (CFS) was unable to develop a DNA profile from the sample on the trigger of the firearm. The clothing, bottles and cups seized from the Dodge Challenger were not tested for DNA because these items do not meet the CFS criteria for testing as Mr. Akyeam-Pong is not facing charges of violence.

[12] The Defence conceded that between July 10, 2022, and July 22, 2022, Mr. Akyeam-Pong:

i. Did not have a licence or authorization to possess a firearm, or a registration certificate for a firearm.

ii. Was prohibited from possessing a firearm, ammunition, a prohibited weapon or device pursuant to:

a. A December 17, 2018, s. 110 Criminal Code order

b. An April 15, 2021, s. 109 Criminal Code order

c. An April 15, 2021, s. 732(1) Probation order.

d. A May 28, 2021, s.110 Criminal Code order

e. A January 28, 2022, s. 515 Judicial Interim Release order.

[13] In addition, Mr. Akyeam-Pong:

i. Was on a probation order dated April 15, 2020, to keep the peace and be of good behaviour.

ii. Was on a release order dated January 28, 2022, where he was to:

a. Be at his Hamilton home address unless there was a medical emergency, or he was in the direct company of his surety.

b. Not possess any unlawful drugs.

c. Have a GPS monitoring device on.

[14] On March 26, 2022, Mr. Akyeam-Pong cut off his ankle monitor and became at large.

[15] The Defence concedes Mr. Akyeam-Pong was in violation of his probation and release orders and so a guilty verdict will be entered on those two counts.

[16] Mr. Akyeam-Pong’s ex-girlfriend, Rawan Al-Dauhaydawi, testified that between July 10, 2022, and the day he was arrested, July 22, 2022, Mr. Akyeam-Pong drove the Dodge Challenger. She identified him going into and coming out of the vehicle several times on the video surveillance that was filed. She also testified he told her the car was his. The two had been staying at 14 Fifteenth Street where the vehicle was parked when it was located and seized by police. The two had also been in the bathroom of 14 Fifteenth Street where the firearm and the Dodge Challenger key fob were found just before Mr. Akyeam-Pong’s arrest on July 22, 2022.

III. Issue

[17] On 8 counts, the issues to be decided are:

(1) Has the Crown proven beyond a reasonable doubt Mr. Akyeam-Pong had possession of the Dodge Challenger knowing it was stolen?

(2) Has the Crown proven beyond a reasonable doubt Mr. Akyeam-Pong had possession of the controlled substances seized from the Dodge Challenger?

(3) Has the Crown proven beyond a reasonable doubt Mr. Akyeam-Pong had possession of the loaded firearm located in the Airbnb?

IV. Legal Principles

[18] As in every criminal case, Mr. Akyeam-Pong is presumed innocent and is not required to give any evidence. The onus rests on the Crown to prove the essential elements of each offence beyond a reasonable doubt. The onus never shifts. Reasonable doubt is based on reason and common sense which must be logically based upon the evidence or lack of evidence, R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39. Reasonable doubt is a high standard of proof which lies “much closer to absolute certainty than to a balance of probabilities”, R. v. Starr, [2000] 2 S.C.R. 144 at para. 242.

[19] The credibility and reliability of witness evidence must be assessed. Credibility relates to whether a witness is speaking the truth. Reliability relates to the accuracy of the testimony. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented, R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27.

[20] None of the items at issue were in the personal possession of the Mr. Akyeam-Pong. The issue therefore is whether he was in constructive possession or joint possession of them.

[21] According to s. 4(3)(a)(ii) of the Criminal Code, constructive possession exists if a person has the item in question “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.” Thus, to prove constructive possession, and pursuant to R. v. Lights, 2020 ONCA 128, at paras. 44-47, Crown must prove that Mr. Akyeam-Pong:

i. Had knowledge of the character of the items in question.

ii. Knowingly put or kept the items in a particular place (which need not belong to or be owned by him); and

iii. Intended to have the items in the place for his own use or benefit or that of another person.

[22] The Crown must prove “knowledge that extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed”, R. v. Pham, 77 O.R. (3d) 401 (C.A.) at paras. 15-16, aff’d 2006 SCC 26.

[23] Joint possession, s.4(3)(b) of the Criminal Code is 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.

[24] Where proof of an offence depends on circumstantial evidence, as is the case here, the trier of fact may convict if guilt is the only reasonable inference available on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole, is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense, R. v. Villaroman, [2016] 1 S.C.R. 613 at paras. 55-56, R. v. Lights, 2020 ONCA 128, at para. 39, and R. v. Stennett, 2021 ONCA 258 at paras. 60-61.

V. Position of the Parties

[25] The Defence submits there are possible, alternative inferences that though Mr. Akyeam-Pong drove the Dodge Challenger, he did not know it was stolen, that though he drove the vehicle, he did not know there were drugs in the vehicle, and finally that though the key fob to the Dodge Challenger was found beside the firearm, someone else could have hidden both these items together without Mr. Akyeam-Pong’s knowledge. As a result, he submits the Crown has not proven its case beyond a reasonable doubt.

[26] The Crown submits that all the Defence alternative possibilities are unreasonable, fanciful and speculation. The Crown submits that given the credibility and reliability of all the witnesses, and the totality of all the circumstantial evidence, the only reasonable conclusion is one of guilt on all counts.

VI. Evidence & Analysis

A. Possession of the Stolen Dodge Challenger, Count 24

[27] Ms. Al-Dauhaydawi testified she met Mr. Akyeam-Pong in 2021, when she was 19 years old, and was his girlfriend off and on until August 2022. On July 10, 2022, she was staying with a friend after a fight with her mother when Mr. Akyeam-Pong suggested she should stay with him. He picked her up from her friend’s place in the Dodge Challenger and drove her and a third person to an Airbnb, a house at 14 Fifteenth Street.

[28] Over the next two weeks while they stayed in different rooms at this Airbnb, which she herself rented under her sister’s name, Ms. Al-Dauhaydawi testified she saw Mr. Akyeam-Pong drive the Dodge Challenger. She was in the car while he drove it 4 or 5 times. Once Mr. Akyeam-Pong was in the passenger seat while his friend drove the car. She left some of her belongings in this car as did Mr. Akyeam-Pong.

[29] She testified Mr. Akyeam-Pong told her the Dodge Challenger was his car. She also testified “he acted like it was his car”, “the key was with him” and “he was driving most of the time”. She knew that two months before Mr. Akyeam-Pong had been driving a Mercedes, and he told her he “got a new car” when he picked her up in the Dodge Challenger from her friend’s place.

[30] Ms. Al-Dauhaydawi admitted that though Mr. Akyeam-Pong told her it was his car, she lied to the police and said it was a “rental” because she was scared.

[31] Ms. Al-Dauhaydawi’s evidence was not shaken, nor was her credibility and reliability even seriously challenged. She was detailed when she remembered details, and easily admitted what she could not remember. She made no assumptions, was thoughtful and balanced. She was straightforward and compellingly honestly in her testimony.

[32] I accept Ms. Al-Dauhaydawi’s evidence in its entirety as credible and reliable. Mr. Akyeam-Pong was in possession of the Dodge Challenger.

[33] Mr. Zeeh, counsel for Mr. Akyeam-Pong submits that Mr. Akyeam-Pong’s possession of the vehicle does not mean he knew it was stolen. Mr. Akyeam-Pong could have innocently borrowed it from someone.

[34] Mr. Weldon did not lend his vehicle to Mr. Akyeam-Pong. Mr. Weldon’s ownership and insurance for the vehicle was located by PC Grey in a flip wallet beside a clear baggie with white powder in the console by the driver’s seat of the vehicle.

[35] It is fanciful to suggest that Mr. Akyeam-Pong, who drove the Dodge Challenger regularly for at least two weeks, left his possessions in the car, and told his girlfriend it was his car, never opened the centre console. It is unrealistic to suggest he did not know the car was owned and insured by Mr. Weldon when the documents stating these facts were still in the centre console of the car he was driving on July 22, 2022. Mr. Weldon is a person Mr. Akyeam-Pong does not know, and from whom he did not buy or borrow the car. This alone leads to the conclusion that Mr. Akyeam-Pong knew he was driving a stolen vehicle.

[36] Moreover, had Mr. Akyeam-Pong been in possession of the Dodge Challenger by what he believed to be legitimate means, as counsel suggests is a possibility, there would be no reason to hide the keys to the car under a towel in a basket in the bathroom before he left the residence when he knew police to be outside the house.

[37] As Justice Cromwell stated in Villaroman:

“...inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” (at para. 36)

The Crown “may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possible conjecture, no matter now irrational, or fanciful, which might be consistent with the innocence of the accused’” (at para. 37).

[38] I find the only reasonable inference, on the totality of the evidence, is that Mr. Akyeam-Pong knew he was in possession and control of the stolen Dodge Challenger.

B. Possession of the Controlled Substances Inside the Stolen Dodge Challenger, Counts 1 and 16

[39] There were narcotics and drug trafficking paraphernalia all over the Dodge Challenger.

[40] There was cocaine in the vehicle’s cupholder. There was fentanyl in a clear Ziplock bag on the floor of the rear driver’s side passenger area. There were 9 different bags containing fentanyl and cocaine in a satchel in the back seat of the car. There was a scale inside the satchel. In the trunk there were two bags with large amounts of caffeine, a well-known cutting agent.

[41] The street value of the drugs was between $52,000 on the low end and almost $80,000 on the high end.

[42] Mr. Akyeam-Pong’s prints were on the Rolex receipts inside the front pocket of the satchel.

[43] Video shows Mr. Akyeam-Pong having driven and parked the Dodge Challenger at 14 Fifteenth St. in the early morning hours of July 22, 2022, before it was located by police hours later exactly where he had parked it, containing all the narcotics, cutting agents, and drug trafficking paraphernalia itemized and seized by police.

[44] Given the numerous locations of the narcotics within the vehicle when Mr. Akyeam-Pong is seen in possession and control of the vehicle on July 22, 2022, it is virtually impossible for Mr. Akyeam-Pong not to have known the narcotics were there.

[45] In addition to the amount and location of the narcotics in Mr. Akyeam-Pong’s vehicle, the significant financial value of the narcotics does not allow for the possibility that someone else would just happen to leave them all over Mr. Akyeam-Pong’s vehicle without Mr. Akyeam-Pong’s knowledge.

[46] Moreover, Mr. Akyeam-Pong’s fingerprints on documents in the same bag as the majority of the narcotics confirms that the only reasonable inference is that both the receipts and the narcotics in the bag in his car belong to Mr. Akyeam-Pong.

[47] It is fanciful to suggest, as counsel did, that Mr. Akyeam-Pong could have touched the receipts that belonged to someone else which were then placed in a bag that belonged to someone else that was then put in his car by someone else, along with the bag of fentanyl on the floor, and a bag of cocaine in the cupholder, and the two bags of cutting agents in the trunk, without him knowing about any of it.

[48] Again as Justice Cromwell stated:

“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” (at para. 37)

“... 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 the accused is guilty” (at para. 38).

[49] In this case, on the totality of the evidence, the only logical inference, be it by way of constructive possession, whereby Mr. Akyeam-Pong had knowledge of the narcotics and put them in the stolen Dodge Challenger he was driving for his own use or benefit, or by way of joint possession whereby with his knowledge and consent someone else put the narcotics in his car and he was thus in possession of them, I find that Mr. Akyeam-Pong had knowledge and control of all the seized controlled substances in the Dodge Challenger.

C. Possession of the Firearm in the Airbnb, Counts 21-23, 28-29, 31

[50] Ms. Al-Dauhaydawi testified that on the morning of July 22, 2023, she was in the bathroom straightening her hair and getting ready to go out, when Mr. Akyeam-Pong came into the bathroom. He was “nervous”, “flustered”, and “antsy”. He was “freaking out” and pacing back and forth because police were outside.

[51] She was shocked to see Mr. Akyeam-Pong awake as he had come home with a friend late the night before. He had arrived at about 3 a.m. and she had opened the door for him. She described the friend, who was still there in the morning as short, with a medium build, dark hair, and a Hispanic complexion called “R”. There is video surveillance of Mr. Akyeam-Pong unsuccessfully trying to double park the Dodge Challenger in front of 14 Fifteenth St. at 2:36 a.m. and then parking up the street, exiting the vehicle with his friend and entering the home.

[52] Ms. Al-Dauhavdawi testified when they were in the bathroom, Mr. Akyeam-Pong told her to check the backyard and she did. She saw officers and told him what she saw. She also saw police and a tow truck by Mr. Akyeam-Pong’s Dodge Challenger but did not tell him that because “he was freaking out” and she did not know what to do.

[53] She testified Mr. Akyeam-Pong told her “We are leaving”. She had to take her things and leave quickly. Once she, Mr. Akyeam-Pong and the friend walked out the door, police wanted to speak to Mr. Akyeam-Pong and he fled. The 3 parties exiting 14 Fifteenth St. is captured an officer’s Body-Worn Camera (BWC) as is Mr. Akyeam-Pong’s flight.

[54] The last room Mr. Akyeam-Pong was in before he left 14 Fifteenth St. with Ms. Al-Dauhavdawi on July 22, 2022, was the bathroom. It was in the bathroom where the keys to the Dodge Challenger were located. The keys were hidden with a firearm under a towel in a basket in that bathroom.

[55] Counsel suggests “R” could have obtained Mr. Akyeam-Pong’s keys to the vehicle and could have had the firearm. The officer’s BWC captures the 3 exiting the residence, but not where “R” fled to, so “R” could have run back into the residence, run upstairs into the bathroom, and hidden Mr. Akyeam-Pong’s car keys and his own firearm under a towel in a basket in the bathroom that Mr. Akyeam-Pong had just been in.

[56] Given Mr. Akyeam-Pong was the one who possessed the keys to the Dodge Challenger in the early morning hours of July 22, 2022, when he parked the car, and given they were located in the last place Mr. Akyeam-Pong was in before he left the residence, the Crown submits the only logical inference is that Mr. Akyeam-Pong hid the keys to the Dodge Challenger there with the firearm, and he was thus in possession of both. I agree.

[57] The Defence theory is a far-fetched one. I find the only logical inference on the totality of the evidence is that when Mr. Akyeam-Pong saw police outside his residence, he hid the key to the Dodge Challenger where it was found in the bathroom, before he left the residence with Ms. Al-Dauhavdawi, and with the key, he hid his firearm beside it.

[58] I find Mr. Akyeam-Pong was in possession of the Beretta nano loaded with 6 rounds of Luger ammunition.

VII. Conclusion

[59] I find Mr. Akyeam-Pong guilty of:

Count 1: Possession of Fentanyl for the Purpose of Trafficking, s. 5(2) Count 16: Possession of Cocaine for the Purpose of Trafficking, s. 5(2) Count 21: Possession of a loaded firearm, s. 95(1) Count 22: Possession of a firearm without a certificate, s. 92(1) Count 24: Possession of Property exceeding $5000, s. 354(1) Count 25: Failing to Comply with Probation, s. 733.1(1) Count 27: Failing to Comply with Release, s. 145 (5) Count 28: Possession of a Firearm while Prohibited, s. 117.01(1) contrary to s. 110 Count 29: Possession of a Firearm while Prohibited, s. 117.01(1) contrary to s. 109 Count 31: Possession of a Firearm while Prohibited, s. 117.01(1) contrary to s. 110

Released: November 1, 2024 Signed: Justice Cidalia C. G. Faria