ONTARIO COURT OF JUSTICE DATE: 2024·08·01

BETWEEN:

His Majesty the King

— and —

Christiaan Doughty

Judgment

L. Price, K. Jazvac ................................................................................ Counsel for the Crown G. Tomlinson ................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Doughty

I. Introduction 3 A. Introduction 3 II. The Criminal Law Framework and Legal Issues 4 A. The Presumption of Innocence 4 B. The Guidance of W.(D.) 5 C. Villaroman and Reasonable Doubt 6 D. Knowledge, Possession, and Control 7 E. Use of the Charter Application Record 8 F. Conclusion: The Framework for Analysis 9 III. Issues 9 A. Introduction 9 B. Control over the Premises of 85 Peter Street – Apartment 2315 11

1. Introduction 11
2. The Existence of Bogdan 11
3. Was Bogdan the Owner or the Renter of 2315-85 Peter Street? 12
4. The Key to the Apartment 13
5. Lease payment 14
6. Peculiar “Lease” Conditions 15
7. Personal Belongings 16
8. Bogdan’s Dog 16
9. Conclusion: Characterizing the Defendant’s Residency 18 C. Cocaine on the Stove 19 D. Possession of the Firearm 19
10. Introduction 19
11. Pictures of the Firearm 20
12. Bogdan Had a Black Satchel Bag 22
13. Ornamentation 23
14. Location of the Black Bag and Firearm Prior to Search Warrant 24
15. CIBC Card and TD Card 25
16. The Defendant’s Proffer 27
17. Conclusion 28 E. Possession of Fentanyl 29 IV. Conclusion 31

I. Introduction

A. Introduction

[1] In January 2023 the defendant sold cocaine to an undercover police officer three times. After the third sale, he was arrested. The police obtained a search warrant for a residence associated to the defendant. Inside the residence, a quantity of cocaine was found on top of the stove in plain view. A black satchel with a firearm was seized from atop a toaster. A prescription pill container with a quantity of fentanyl was found in a plastic bag on the kitchen counter. The defendant was charged with several Criminal Code and Controlled Drugs and Substances Offences (CDSA) as a result.

[2] The defendant testified at trial. The testimony of both the undercover police officer and the defendant supports a finding that the defendant knowingly trafficked cocaine to an undercover police officer on three occasions: January 5^th^, 2023; January 7^th^, 2023, and January 10^th^, 2023. That record also supported the defendant’s guilt on possession of proceeds of crime given his receipt of police “buy money”. The defendant’s testimony supports a finding that he knowingly possessed the cocaine on top of the stove for the purpose of trafficking. During submissions, Defence counsel did not challenge these matters and acknowledged that convictions should be entered.

[3] Having considered the criminal burden of proof, the evidentiary record, and the submissions of counsel, I am satisfied beyond of a reasonable doubt that the defendant trafficked cocaine on each of the above-noted days. I am also satisfied beyond a reasonable doubt that he received and possessed money from the undercover officer (police “buy money”). As a result, as it concerns Information #0625, I make the following findings of guilt in relation to the indictable counts:

1. Count 1: Trafficking cocaine, contrary to s.5(1) of the CDSA;
2. Count 2: Possession of proceeds of crime contrary to s.354(1)(a) of the Criminal Code;
3. Count 3: Trafficking cocaine, contrary to s.5(1) of the CDSA;
4. Count 4: Possession of proceeds of crime contrary to s.354(1)(a) of the Criminal Code;
5. Count 5: Trafficking cocaine, contrary to s.5(1) of the CDSA;
6. Count 6: Possession of proceeds of crime contrary to s.354(1)(a) of the Criminal Code; and,
7. Count 7: Possession of Cocaine for the purpose of trafficking, contrary to s.5(2) of the CDSA.

[4] What remains is the disposition of other counts on two Informations.

[5] On Information # 0625 the defendant faces one additional count -- count 8, Possession of fentanyl for the purpose of trafficking. For the reasons set out in this written judgment, I find the defendant not guilty of possession of fentanyl for the purposes of trafficking. An acquittal is entered on count 8.

[6] As it concerns Information #0624 the defendant faces the following indictable offences: [^1]

1. Count 1: Possession of a restricted or prohibited firearm without a licence contrary to s. 91(1) of the Criminal Code;
2. Count 2: Possession of a restricted or prohibited firearm while knowingly not being the holder of a licence contrary to s. 92(1) of the Criminal Code; and,
3. Count 3: Possession of a loaded prohibited firearm contrary to s.95(1) of the Criminal Code.

[7] For the reasons set out in this written judgment, I find the defendant guilty of counts 1,2, and 3 on Information #0624. Prior to sentencing, I will receive submissions from counsel as to the application of R. v. Kienapple, [1975] 1 S.C.R. 729.

II. The Criminal Law Framework and Legal Issues

[8] Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence in in this criminal trial.

A. The Presumption of Innocence

[9] The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

B. The Guidance of W.(D.)

[10] In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis.

[11] A trier of fact is entitled to accept some, all, or none of a witness’ testimony: R. v. Kruk, 2024 SCC 7, at para. 82 [Kruk]; R. v. C.P., 2021 SCC 19, at para. 274; R. v. J.H.S., 2008 SCC 30, at para. 10 [J.H.S.]. This principle necessarily implies that the trier of fact is entitled to determine the weight assigned to the testimony received.

[12] The decision in R. v. W.(D.), [1991] 1 S.C.R. 742 [W.(D.)] sets out the three-step process for analyzing credibility in the face of conflicting evidence between prosecution and defence witnesses. The guidance is as follows:

1. If you believe the evidence of the accused, obviously you must acquit;
2. Even if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit; and,
3. Even if you are not left in doubt by the evidence of the accused, you must ask whether, on the basis of the accepted evidence, has the prosecution established guilt beyond a reasonable doubt.

[13] I am in favour of a “fourth step”. If the trier of fact does not know whether to believe the defendant’s testimony, or can not decide as between belief of the defendant’s testimony and belief of the prosecution witnesses, an acquittal must be entered: Kruk, at para. 62; J.H.S., at paras. 10-13. In a credibility case, the analysis may not degenerate into a “contest” between the defendant and the prosecution witnesses: W.(D.).

[14] Finally, it is important to recognize that W.(D.) applies to the entire evidentiary record at trial – it does not matter if the Crown has adduced the evidence or the Defence has adduced the evidence: R. v. Marki, 2021 ONCA 83, at paras. 23, 25; R. v. Smith, 2020 ONCA 782, at paras. 12, 26, 30, 32; R. v. Debassige, 2021 ONCA 484, at paras. 127-130.

[15] I will explain my credibility findings in this written judgment. I will explain why I accepted some of the defendant’s evidence but rejected the majority of his evidence particularly as it concerned possession of the firearm. I will explain why having rejected the defendant’s denial of possession of the firearm, the prosecution has established his guilt beyond a reasonable doubt.

[16] I will also explain why, despite my credibility findings, I acquitted the defendant of possessing fentanyl. Where the prosecution case is not established to the criminal standard of proof, it is an error to convict a defendant simply because of the rejection (or meagre endorsement) of the defendant’s testimony: Kruk, at para. 62.

C. Villaroman and Reasonable Doubt

[17] The prosecution has not adduced direct evidence of the defendant possessing the fentanyl or the firearm. The defendant’s testimony is direct evidence that he possessed the cocaine on the top of the stove.

[18] I find that the prosecution case invokes a theory of liability grounded upon constructive possession and inferences sourced in circumstantial evidence. Circumstantial evidence has been described as “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred”: R. v. Cinous, 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.), at para. 89.

[19] Given this central reliance upon circumstantial inference, it is appropriate to apply the guidance set out by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 [Villaroman]. In particular:

1. Where proof of one or more of the elements of an offence depends exclusively or largely on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits…”: Villaroman, at para. 30;
2. When assessing circumstantial evidence, the trier of fact should consider other “plausible theories” and other “reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37;
3. The prosecution is not required to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37.
4. In distinguishing between a plausible theory and speculation, the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38;
5. The trier of fact should be alerted to unconscious efforts to “fill in the blanks” or “bridge gaps” in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;
6. Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not rendered speculative simply because it arises from a lack of evidence: Villaroman, at paras. 35-36; and,
7. Requiring proven facts as a pre-condition to establish inferences of innocence improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35.

[20] As it concerns the concept of reasonable doubt, it is important to note that a “reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and is ‘logically connected to the evidence or absence of evidence’”: Villaroman, at para. 28. Reasonable doubt is not an inference or a finding of fact at trial requiring an evidentiary foundation: Villaroman, at para. 28. Finally, the reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Bradley, 2015 ONCA 738, at para. 141.

D. Knowledge, Possession, and Control

[21] Given the submissions of the Crown and Defence counsel, there is no disagreement as to the law applicable to possession. Nevertheless, a brief summary is required.

[22] Section 4(3) of the Criminal Code defines possession, and that definition is adopted by s.2 of the CDSA. Possession may be characterized as: personal - s.4(3)(a); constructive - s.4(3)(a)(i) and (ii); or, joint: s.4(3)(b). At core, the prosecution must prove that the defendant had knowledge, possession, and some measure of control over the impugned items.

[23] Knowledge means that the prosecution has proven actual knowledge (i.e., “true belief”) or wilful blindness: R. v. Lights, 2020 ONCA 128, at paras. 51-52. Knowledge may be proven by way of direct evidence or by the proof of facts in support of a reasonable inference: R. v. Pham, [2005] O.J. No 5127 (C.A.) at para. 44 [Pham].

[24] The prosecution did not articulate a theory of liability based on joint possession.

[25] Personal possession means that the accused was aware of being in possession of the thing alleged, was aware of what the thing was, and exhibited some measure of physical control over the thing: R. v. Beaver, [1957] S.C.R. 531; R. v. Morelli, 2010 SCC 8, at para. 137; Lights, at paras. 44-48; R. v. Degraw, 2018 ONCA 51, at para. 8.

[26] The central focus at this trial concerned constructive possession. In a recent case named R. v. Choudhury, 2021 ONCA 560 [Choudhury], the Court of Appeal restated the approach in Lights and set out the elements of constructive possession at paragraph 19:

19 The relevant legal principles on constructive possession are not in dispute:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2–3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused's knowledge and control of the impugned objects is the only reasonable inference 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: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55–56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60–61.

[27] In the context of a possession of items within a residence, it is critical to note that occupancy of the residence alone is not sufficient to establish constructive possession: R. v. Kaup, 2022 ONCA 383, at paras. 31-32; Choudhury, at para 19; Lights, at paras. 97-105; R. v. Biggs, 2016 ONCA 910 at paras. 27-28; R. v. Bui, 2014 ONCA 614, at paras. 34-36.

E. Use of the Charter Application Record

[28] The defendant elected to testify during a pre-trial s.8 Charter of Rights and Freedoms [Charter] application. The defendant also elected to testify at trial. The parties did not request a “blended” application and trial. As such, the record adduced on the application was not admissible at trial. During cross-examination the Crown compared and contrasted material differences between the defendant’s testimony on the application and the defendant’s testimony at trial. There was no objection to this cross-examination theme. Given these circumstances, it is important to address the legal issue of the admissibility of the defendant’s testimony on the application.

[29] Defence counsel submits that the defendant’s testimony on the application is admissible to impeach his credibility at trial. The Crown submits that the defendant’s testimony was admissible for both impeachment and incrimination purposes. I find that the defendant’s testimony on the application was admissible both for impeachment and incrimination purposes. I find support for this ruling in several Supreme Court of Canada judgments: R. v. Nedelcu, 2012 SCC 59; R. v. Henry, 2005 SCC 76; R. v. Kuldip, [1990] 3 S.C.R. 618, at para. 28. Further, I adopt the guidance of the Supreme Court of Canada in the footnote to paragraph 24 in R. v. Jones, 2017 SCC 60:

In posing this question, I note that this Court has not ruled on whether a Charter claimant’s testimony in a s. 8 voir dire is subject to the protections against self-incrimination provided by s. 13 of the Charter. Nor is this the proper case to do so. However, it may follow from this Court’s decisions in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, and R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, that because the accused is not a compellable witness at his own s. 8 voir dire, his evidence could subsequently be used to cross-examine him for both incrimination and impeachment purposes. To that extent, Mr. Jones would be reluctant to admit he authored the Text Messages because he was worried about potentially incriminating himself.

[30] The defendant was not compelled to bring a Charter application. Having instructed his counsel to bring an application, the defendant was not compelled to testify on the application. Having voluntarily testified on the application, and voluntarily testified at trial, there was no prohibition against putting his application testimony to him at trial. While I find that the application testimony was admissible for both impeachment and incrimination purposes, as I will explain in this judgment, this record was used for the purpose of assessing the defendant’s credibility.

F. Conclusion: The Framework for Analysis

[31] The prosecution case provokes issues of constructive possession and circumstantial inference. The defendant has no onus in a criminal trial. The defendant does not have to “prove” or establish reasonable doubt. It is the prosecution who must prove each element of each offence beyond a reasonable doubt. Any doubt must be resolved in favour of the defendant.

[32] In addition to the criminal burden of proof, in this circumstantial possession case, the prosecution must satisfy me that the defendant’s guilt is the only reasonable inference from the trial record.

[33] What follows is the analysis in support of my finding that the prosecution has met this onus as it concerns the possession of the cocaine on the stove and possession of the firearm. The analysis also addresses why, using the same framework, the prosecution has not met the onus as it concerns possession of fentanyl for the purpose of trafficking.

III. Issues

A. Introduction

[34] The defendant has no onus in a criminal trial. The defendant does not have to prove a “defence”. Mindful of the onus placed on the prosecution, it is still important to set out and address the defences raised by the defendant so that the reasoning is clear.

[35] The Defence position on the contested counts is:

1. The black satchel containing the firearm belonged to the former inhabitant – Bogdan; [^2]
2. The loaded firearm found within the black satchel belonged to Bogdan;
3. The fentanyl in the pillbox may have been innocently placed with the defendant’s files by the defendant’s ex-girlfriend while cleaning up the apartment after a party; and,
4. The defendant did not possess the firearm or the fentanyl.

[36] Having considered the entire admissible record at trial, [^3] the prosecution has established beyond a reasonable doubt that the defendant possessed the firearm. In arriving at this conclusion, I will explain why I do not believe the defendant’s denial of possession. I will also explain why, having assessed the mixed record of direct and circumstantial evidence, I find that that record admits of only one reasonable inference – the defendant’s guilt.

[37] Applying the same framework for analysis, I will explain why the prosecution has not established that the defendant possessed fentanyl beyond a reasonable doubt.

[38] I will address the material issues at trial in the following manner:

[39] First, a central issue at trial concerned the defendant’s residency at apartment 2315-85 Peter Street [“the apartment”]. I recognize that there is no presumption in law that those who inhabit an apartment necessarily possess all the things inside. But it is important to explain the record and the findings in this regard as they are foundational to the possession-related arguments made by counsel.

[40] Second, I will briefly explain why the defendant is guilty of possessing the cocaine found on the stove.

[41] Third, I will address the record as it concerns possession of the firearm found within the black satchel seized from the apartment and explain why the prosecution has proven that the defendant constructively possessed the firearm.

[42] Fourth, I will explain why the prosecution case does not establish beyond a reasonable doubt that the defendant possessed the fentanyl found on the kitchen counter.

[43] Finally, although neither counsel belaboured the law as it pertains to possession, I will briefly summarize the statutory guidance and applicable caselaw.

[44] Throughout this judgment, I will explain my credibility findings as it concerns the defendant’s testimony. A trial judge may accept some, all, or none of the testimony of a witness. I accepted some of the defendant’s testimony. I rejected most of the testimony of the defendant as either implausible or untrue. But rejection of the defendant’s testimony alone is not sufficient to ground criminal liability. As such, further analysis of the record is required and set out in this judgment below.

B. Control over the Premises of 85 Peter Street – Apartment 2315

1. Introduction

[45] A combination of the viva voce testimony from DC Ghazarian and the agreed statement of fact demonstrate a significant link between the defendant and the apartment at 85 Peter Street. [^4] The defendant testified that he first inhabited the apartment on December 26^th^, 2022. The defendant testified that he engaged a locksmith obtained a new key to the apartment. He also testified that he obtained a FOB for access to the building and the apartment. At the time of the search warrant, the defendant was the lone inhabitant of the apartment.

[46] The search warrant videos and photographs provide a good appreciation of the size of the premises. It is a one bedroom, one bath, apartment. The size of the apartment is approximately 500 square feet. That a firearm, cocaine, and fentanyl was seized from such a small location is one consideration when analyzing criminal law possession. But mere inhabitation of the premises does not support a presumption that the defendant possessed all of the items within the apartment.

[47] A significant issue at trial concerned the defendant’s evidence about Bogdan, and the defendant’s assertion that Bogdan’s possessions and his possessions were comingled at the residence. Given this assertion, the record must be analyzed, and findings explained.

2. The Existence of Bogdan

[48] A central feature of the defendant’s testimony concerned his very close friend Bogdan. Bogdan was not called as a witness at trial by the prosecution or the defence. The defendant testified that although he and Bogdan were very close friends at the time of the allegations, by the time of trial, he was no longer able to contact him.

[49] I generally accept the defendant’s evidence about his association with Bogdan, and that Bogdan was connected to the apartment. It is also important that I accept the photographic and video evidence presented by the Defence in support of the identity of Bogdan. Finally, I accept the evidence of defence witness Ondre Alleyn who was corroborative of the defendant’s testimony for the existence of Bogdan and Bogdan’s link to the apartment.

3. Was Bogdan the Owner or the Renter of 2315-85 Peter Street?

[50] During direct examination at trial, the defendant testified that Bogdan leased the apartment, and the lease was to expire in June 2023. The defendant testified that he was to pay rent to Bogdan directly until June 2023, thereafter he would assume responsibility for the lease.

[51] During cross-examination at trial, the defendant was examined about his testimony provided on the Charter application. He adopted his testimony on the application wherein he testified that Bogdan owned the apartment and was subletting to the defendant for one or two years while he vacationed in Romania and Spain. The defendant even testified that that Bogdan’s parents had assisted Bogdan with purchasing the apartment.

[52] I must once again emphasize that the defendant has no burden to prove anything in a criminal trial. But it is the defendant who elected to testify on the application and the trial. It is the defendant who provided two different stories about Bogdan’s connection to the apartment. Given this credibility concern, I looked for any objective corroborative support. I conclude that I do not believe the defendant’s evidence about a lease arrangement for several reasons.

[53] First, there is no objective evidence of a lease/rental arrangement. There is no objective evidence of Bogdan (or his parents) being the legal owner(s) of the apartment. There is no evidence of any email/text communication from Bogdan to the property management office at the condo.

[54] Second, during direct examination the defendant adduced a document purporting to be an Interac transfer to Bogdan. I digress for one moment to point out that this purported Interac transfer document shows that it was supplied by “Josh Harris” who provided a password (I will address this further below under the heading “Lease payment”). But assuming for the moment that this document is authentic and truthful, within the body of that document, the defendant’s message on alludes to the defendant taking over the apartment lease “ . . . on the 26^th^ while you are away the next few months ”. The defendant did not explain this reference during his testimony. Nor did he resolve the apparent conflict with both versions he provided when he testified.

[55] The Crown submits that the reason for the defendant’s flip-flop on this issue is because on the application, the defendant was intent on projecting an amplified and healthy s.8 Charter privacy interest. At trial, the defendant was interested in eroding this foundation given the possession issues at trial.

[56] During submissions both the Crown and Defence acknowledged the obvious – the record on this issue was remarkably unclear. I am in the same position as Defence counsel and the Crown. I am unable to definitively resolve the truth of the matter given the defendant’s testimonial performance.

[57] But leaving aside the defendant’s performance as a witness, I recognize that a trier of fact is entitled to accept all, none, or part of a witness’s evidence. Experienced trial judges recognize that witnesses sometimes do not tell the truth for a variety of reasons. Sometimes those reasons are not necessarily related to guilt or innocence.

[58] While I acknowledge the Crown submission that the defendant is probably not telling the truth about the whole arrangement, I am obligated to consider the issue having regard to the entire adduced at trial. Further, I should not allow the defendant’s testimonial performance or credibility issues to predominate the analysis of guilt or innocence.

[59] I conclude that there is support for the defendant’s position that Bogdan was associated to the apartment, even without manifest corroboration. [^5] I also accept defence witness Alleyn’s evidence that he attended “Bogdan’s residence” once in September 2022. Finally, having regard to the defendant’s testimony at trial, I believe his evidence that some of Bogdan’s possessions remained within the residence.

[60] In my view, notwithstanding the murky record as it concerns the truth of his inhabitancy, the defendant’s testimony and the record at trial is some foundation for the notion that Bogdan had a measure of control over the apartment. I endorse the Defence position that this is relevant to the issue of possession. I accept this evidence as foundation for the defendant’s position that the fentanyl and the black satchel with the firearm belonged to Bogdan despite the defendant’s credibility. [^6]

4. The Key to the Apartment

[61] During direct examination at trial the defendant testified that Bogdan did not supply a key for the front door of the apartment (or a FOB for the building). The defendant testified that he hired a locksmith to change the lock on the apartment. The defendant explained that there was a delay as the locksmith explained that he had to go through the property management office. The defendant testified that he received the key from the locksmith after the locks were changed.

[62] During cross-examination, the defendant again testified that the locksmith replaced the lock on the door and handed the defendant a key. He also testified that the locksmith did not give anyone else a key. Less than five minutes later, the defendant testified that he did not meet the locksmith and he did not receive a key from the locksmith. He testified that he simply found the key within the apartment waiting for him.

[63] The defendant was not able to maintain a consistent version of events on this issue for ten minutes during cross-examination. It is unclear which version of events is the accurate and truthful version. But once again, leaving aside the credibility or reliability issue associated with the different versions of events, it is clear that the defendant possessed the only key to the apartment, and that the locks had been rekeyed shortly before the execution of the search warrant.

5. Lease payment

[64] During direct examination the defendant testified in support of a convoluted network of steps and the use of third parties to facilitate financial transactions. This was an obvious effort to subvert financial controls imposed by his home country of Barbados. I have ignored these opaque financial dealings and the use of third parties as intermediaries as these machinations are not important. The defendant is not on trial as it concerns his financial dealings. The only important issue concerned the defendant’s assertion about an Interac transfer lease payment. This was important to the issue of control over the apartment.

[65] The defendant testified that he paid Bogdan for the initial leave payment via Interac transfer. He adduced a document purporting to be proof of this lease payment. I do not accept this evidence for two central reasons.

[66] First, it is notable that the defendant adduced evidence of an Interac transfer for $1900.00 to Bogdan on December 16^th^, 2022. That evidence was forwarded by Josh Harris foreverflawless@live.com to the defendant’s email address christiaan.doughty@gmail.com on February 13^th^, 2023 at 10:40 PM. The apparent communication from Josh Harris discloses a password. The defendant was not examined on the authenticity of this document. The text of the message carries a scent of self-serving evidence. The communication was conveyed by Josh Harris to the defendant. The defendant did not explain who Josh Harris was, or why he was conveying private banking communications received by Bogdan to the defendant.

[67] Second, the defendant testified that the $1900.00 “lease” electronic transfer payment to Bogdan was sourced from his girlfriend Ashley’s RBC account. He testified that he was not a co-account holder with his girlfriend. He testified that he did not have any bank account in Canada. He adduced evidence about a CIBC account based in Barbados. He testified about a Capital One account in the USA. He testified he did not have a TD Bank account. [^7]

[68] During cross-examination, the defendant confirmed he used the Capital One account in Canada, and it was the only other bank. [^8] During cross-examination the defendant was confronted with the fact that the Interac transfer payment bears his name – not his girlfriend Ashley. The defendant could not provide any explanation for why his name would be associated with the transfer. He did not accept the prosecution suggestion that this was because he was simply making up the evidence.

6. Peculiar “Lease” Conditions

[69] The defendant testified that there were specific lease conditions imposed by Bogdan:(1) be respectful;(2) do not have any “outrageous parties”; and (3) do not invite strangers into the condo without Bogdan’s permission.

[70] Earlier in this judgment I addressed the record as it concerned Bogdan as an “owner” or Bogdan as a “subletter” and the fact that neither party, nor this Court, could discern the exact arrangement. But on either version of inhabitancy articulated by the defendant, the notion that Bogdan imposed terms is odd and implausible. I do not believe this evidence from the defendant for several reasons.

[71] First, as noted above, there is no objective documentary evidence supporting the inhabitancy arrangement. There is similarly no objective evidence of the terms imposed by Bogdan. The defendant testified that he obtained permission from Bogdan on more than one occasion and that the permission was conveyed electronically. The defendant did not file any electronic message supporting this claim.

[72] Second, if Bogdan was the owner of the apartment, the notion that he would regulate access from Romania and Spain for either one or two years improbable if one uses common sense and experience as the guide. This is particularly so given the defendant’s evidence that he and Bogdan were very close friends.

[73] Third, if the alternative version of events is the truth, and the defendant was to assume a lease arrangement after June 2023, why would Bogdan care who was entering an apartment he did not actually own, and he would soon relinquish? The defendant would be assuming the lease on this version of events.

[74] Ironically, the defendant adduced evidence of an Interac payment wherein the body of that message suggests that Bogdan is away for “the next few months”. On this version of residency, not endorsed by the defendant, it might be conceivable that a person might impose conditions for a few months while they are away. It might lead to an inference that the person planned to retain control over a place they plan to live in upon their return.

[75] But on the two versions endorsed by the defendant, it makes no sense that Bogdan would have any interest in approving or denying the defendant’s anticipated visitors.

7. Personal Belongings

[76] The question of when the defendant moved to the apartment is relevant to control over the premises. The question of which personal items he moved, and when he moved them, is also relevant.

[77] During direct examination at trial, the defendant testified that he did not move all of his personal possessions from his prior address of 61 Mann Avenue. to 85 Peter Street. He testified that his mailing address remained 61 Mann Avenue and some personal property remained at 61 Mann Avenue.

[78] During cross-examination, the defendant was confronted with his testimony on the Charter application where he testified that he brought all of his personal property from 61 Mann Avenue to 85 Peter Street. The defendant acknowledged his evidence from the application, but disagreed that his shift in position at trial was because he was trying to amplify his s.8 Charter privacy when he was testifying on the application.

[79] When confronted in this manner, the defendant then testified that he had moved all items from 61 Mann Avenue to 85 Peter Street, but that he still had possessions at a third address belonging to a girlfriend – Toffee Court.

[80] The Crown then confronted him, yet again, with his earlier testimony, during cross-examination, wherein he stipulated that he had never stayed at Toffee Court or visited a girlfriend there. The defendant answered that he did not visit Toffee court after he moved out of 61 Mann Avenue.

[81] The defendant’s vacillation as he divined the intent of the cross-examiner did not enhance his credibility.

8. Bogdan’s Dog

[82] During direct examination at trial the defendant testified that Bogdan had left his dog with the dogsitter. The defendant understood Bogdan would be returning to Canada on January 14^th^, 2023, to obtain some personal possessions and the dog.

[83] During cross-examination at trial the Crown confronted the defendant with his application testimony that Bogdan was not returning to Canada until March. The defendant did not adopt his application testimony. Nor did he explain the discrepancy.

[84] The Crown also cross-examined the defendant about the record in this regard on the application. Namely, that while preparing the cocaine in the apartment just prior to the third and final trafficking of cocaine, Bogdan’s dog was not in the condo. Yet after his arrest, when the police executed the search warrant, the dog was present. The defendant then testified -- for the first time -- that on January 10^th^, 2023, Bogdan asked him to take care of his dog for a few days until he returned to Canada on January 14^th^, 2023.

[85] The Crown reminded the defendant of his clear and express denial of a similar line of cross-examination on the application when the Crown suggested that the defendant was merely housesitting -- taking care of Bogdan’s dog – while Bogdan was away. The defendant then reluctantly agreed that he was “dog sitting” for a few days at least.

[86] The defendant then went on to testify that he believed that the dog sitter must have delivered the dog to the apartment while he was engaged in his final trafficking transaction before arrest on January 10^th^, 2023. In other words, at some point in between the time he left the apartment to traffic cocaine and was arrested, and the execution of the search warrant. He also incredulously testified that he left the door unlocked for the dogsitter – a stranger -- with the large amount of cocaine sitting on the stove.

[87] I don’t believe the defendant’s testimony about the arrangements for Bogdan’s dog or the dog sitter story.

[88] First of all, given the cross-examination and his acknowledgement of his pre-trial application testimony about the dog, that record is admissible at trial. On the pre-trial application, I found that the Crown demonstrated, in a dramatic fashion, that the defendant was not telling the truth about the dog. I explained that even when given several chances, the defendant maintained the fiction. For the purposes of this judgment at trial, I need not address the matter further. I adopt paragraphs 60 to 65 of the Garofoli ruling where I explained why I arrived at this conclusion.

[89] Second, I think it implausible that the defendant left a large quantity of cocaine in plain view on the stove anticipating a complete stranger, the dog sitter, was to attend and drop off the dog. Anyone entering the apartment could not possibly miss the large amount of cocaine sitting on the stove. A complete stranger could conceivably call the police.

[90] Third, I think it implausible that the defendant left a large quantity of valuable cocaine in plain view on the stove, and left the premises unlocked. Given the monetary cost of the product, the time needed to acquire the product, and the effort he expended to traffic in cocaine, [^9] I do not believe the defendant’s testimony that he intentionally left the premises unlocked.

[91] Finally, I prefer the testimony of DC Ghazarian that security gave him the master key to unlock the apartment when executing the search warrant. This witness was quite specific that he used the key. Thus, there was no opportunity for a dog sitter to gain entry while the defendant was trafficking cocaine on the streets below.

9. Conclusion: Characterizing the Defendant’s Residency

[92] Control over the apartment at 85 Peter Street is an important preliminary issue relevant to the analysis of possession. The exact circumstances surrounding the defendant’s residency are unclear. The defendant’s credibility impaired.

[93] But notwithstanding the impact on the defendant’s credibility, the Court must focus on the record at trial and the onus placed on the prosecution to establish possession beyond a reasonable doubt.

[94] I find that the defendant had significant control over the apartment. He had a FOB to access the building. He had a newly cut key from a locksmith for the front door. He acquired that key only days prior to the search warrant. There is no evidence that Bogdan was present in Canada. No one else resided in the apartment. I don’t believe the defendant’s testimony about a dog walker accessing the apartment between the time he left to traffic cocaine on January 10^th^ and the execution of the search warrant. I don’t believe that the defendant routinely left the door unlocked.

[95] I accept the defendant’s testimony that Bogdan had previously enjoyed control over the premises. I also accept the defendant’s evidence that Bogdan had left personal property in the residence including clothing and appliances. Finally, despite rejecting the defendant’s evidence about the residency of Bogdan’s dog as outline above, I nonetheless conclude that the dog was in fact associated with the apartment. Ironically, despite the defendant’s misleading testimony, this evidence actually strengthens the connection between the vacationing Bogdan and the apartment.

[96] Thus, even in the absence of the police investigation of Bogdan with the condo property management, [^10] I find that a cobbled together consolidation of the defendant’s testimony that I accept, the Defence exhibits, and the record at trial, provides some support for the proposition that Bogdan enjoyed a limited measure of control over the premises.

[97] I am also aware of the law of possession. Simply because the defendant had control of the premises does not automatically mean that the defendant possessed all of the items within. It would be an error in law to conclude that the defendant must have possessed the firearm, cocaine, and fentanyl because of his control over the premises.

[98] As such, having made my findings as it concerns the circumstances of the defendant’s residency, and acknowledging that Bogdan is a relevant factor, I move on to the analysis of these seizures to determine if the prosecution has proven possession beyond a reasonable doubt.

C. Cocaine on the Stove

[99] The police seized 7.32 grams of powder cocaine in plain view on the stove.

[100] The defendant testified that on January 10^th^, 2023, he obtained a quantity of cocaine from his dealer, measured out a portion, and went directly to meet with the undercover officer. He then sold the cocaine to the undercover officer. The prosecution has established beyond a reasonable doubt that the defendant possessed cocaine for the purpose of trafficking. [^11]

D. Possession of the Firearm

1. Introduction

[101] Shortly after the defendant’s arrest on January 10^th^, 2023, the police executed a search warrant on the apartment at Peter Street. The police seized a black Hershel-branded satchel containing a loaded firearm resting on top of the toaster in the kitchen.

[102] Given the agreed statement of fact and the submissions of counsel, the material particulars of the firearm are not at issue. There is no issue that the firearm was loaded and operable. The only issue at trial concerned the issue of possession.

[103] No police officer observed the defendant with a black satchel bag, even when the defendant trafficked cocaine to the undercover officer. There is no forensic evidence link between the firearm and the accused. There is no forensic link between the bag and the accused.

[104] The defendant’s CIBC bank card was found in a small plastic bag within the black satchel. The satchel was sitting on top of the toaster in the kitchen. The satchel was unzipped. It was within arms-length of the cocaine in plain view on the stove.

[105] The Crown position is that the defendant possessed the black satchel bag. Further, the Crown contends that the impugned bag resembles a bag worn by the defendant in an Instagram video exhibit filed at trial.

[106] The Defence position is that the Court should find that the bag and firearm belonged to Bogdan. Alternatively, the Court should be in a state of reasonable doubt. The defendant testified that the black satchel bag with the firearm seized from the apartment belonged to Bogdan. He testified that he had seen Bogdan possess the firearm seized by the police. He testified that he had seen Bogdan with the gun a few months prior to his arrest. He testified that Bogdan had sent him a picture or pictures of the firearm through iMessage. [^12] The defendant also proffered into evidence a similar black satchel bag he claimed to own thereby suggesting that the black satchel seized by the police should not be attributed to him.

[107] While it is the Defence position that Bogdan owned the black satchel and the firearm found within, the Defence is not required to prove that this was so. There is no burden on the defendant to prove that Bogdan possessed the black satchel with the firearm. The defendant is entitled to assert this claim and rely upon the criminal burden of proof, the law pertaining to circumstantial inference, and the concept of reasonable doubt.

[108] As I will outline below, I reject the defendant’s assertions. I am not in a state of reasonable doubt. The prosecution has proven beyond a reasonable doubt that the defendant possessed the firearm.

2. Pictures of the Firearm

[109] During direct examination the defendant testified that he received a single photo of Bogdan with a firearm via iMessage: [^13]

Q. Have you ever seen Bogdan with a gun? A. I've seen Bogdan with the gun. Q. And can you tell us when and have you seen him with the gun? A. I've seen him with the gun a few months before my arrest. But I saw him through pictures, he sent me a picture with him, he said he was hanging out with friends. Q. Do you have that picture? A. I don't have that picture. Q. Okay. And what was that picture sent to you on? A. It was sent to me over iMessage.

[110] Clearly the defendant was referencing the firearm at issue in the proceedings – the firearm seized by the police from the black satchel in the apartment.

[111] During cross-examination the defendant’s testimony evolved: [^14]

Q. Now. You said that you had seen Bogdan with the gun before. Is that right? A. Yes, sir. Q. You've seen it with your own eyes? A. No. I said I've saw with pictures, sir. Q. You only saw a picture of Bogdan with the gun? A. Yes. Q. Can you describe the gun that you saw in that picture with Bogdan? A. He had various guns, as I recall. He said it was, he met, he was dating.... THE COURT: I, I don't want to hear what he said.... MR. PRICE: Q. So. Describe what you saw in the picture. Describe the gun. A. I saw several guns, sir. Q. Now. Earlier today you said you'd seen Bogdan in a photo with a gun; now it's several guns? A. Yes, sir. Q. So. Earlier today, you said it was one. Now you're saying multiple. Is that right? A. I'm saying that I saw him with a gun. Q. In a photograph, or in multiple photographs? A. In multiple photographs. Q. How many guns, total? A. I didn't count, at the point in time. He just sent me the pictures and I said, what are you doing? Q. And there were multiple different guns across these multiple different photographs? A. Yes, sir. Q. And describe what the guns looked like. A. Some were black, some were—appeared to be assault rifles.

[112] I don’t believe defendant’s testimony for several reasons.

[113] First, the evolution of his testimony when pressured during cross-examination was illuminating. He went from having seen Bogdan with the firearm in a single picture to seeing multiple photos and multiple firearms including assault rifles during cross-examination. This evidence came out during cross-examination for the first time. The defendant had ample opportunity to convey this evidence during direct examination.

[114] Second, against the backdrop of numerous pieces of evidence produced by the defendant at trial, it is notably that that the defendant did not produce a single photo of Bogdan in possession of any firearm, let alone the one at issue in the trial, when he had received several on his iPhone via iMessage. For example, the defendant adduced a largely meaningless video showing him travelling on an unknown highway near the airport to meet with his dealer. If the defendant turned his mind to that evidence, surely, he turned his mind to production of a photo of Bogdan holding the very firearm seized by the police (or any firearm for that matter). The defendant did not testify that he could not access the photo (or photos). He did not testify that photos received by way of iMessage were unavailable. [^15]

[115] This common-sense proposition does not reverse the onus. While the defendant does not have an onus to prove anything in a trial, he voluntarily testified that he had observed Bogdan with a firearm. I am obliged to analyze his testimony as part of the record to determine if I am in a state of reasonable doubt on the record as a whole. I am not.

3. Bogdan Had a Black Satchel Bag

[116] The defendant testified in support of four photographs and one video showing Bogdan wearing a black side bag. The defendant testified that the black bag depicted on Bogdan in those exhibits was the same black bag containing the firearm seized from the apartment by the police. [^16]

[117] I accept the electronic exhibits demonstrating that Bogdan possessed a black satchel bag. I accept the defendant’s testimony that Bogdan had a black satchel bag. I also except the evidence of defence witness Ondre Alleyn identifying Bogdan as wearing a black satchel bag.

[118] I do not accept the defendant’s contention that the four photographs and one video show Bogdan in possession of the same black satchel from the apartment with the firearm.

[119] The defendant’s opinion in this regard is simply an opinion. The defendant claims no intimate knowledge of Bogdan’s black satchel. Thus, he is simply providing an opinion based on his observation of the electronic exhibits and the impugned black satchel at trial.

[120] While the defendant is entitled to his opinion, he is in no better position than the trier of fact to assess the evidence. I am able to observe the exact same record the defendant is relying upon. I do not agree with the defendant’s opinion. I do not see anything in the exhibits demonstrating any notable feature of the black satchel worn by Bogdan.

[121] Exhibits 31A and 31C appear to show Bogdan wearing a satchel with a light colour on the side of the satchel. There is no identifiable brand. This light colour feature is not reflected on the seized black satchel bag.

[122] Exhibit 32 appears to show a satchel with solid black colour. There is no identifying brand. There is nothing in the features of the black satchel in exhibits 31A, 31B, 31C or 32 to tie it to the seized black satchel with the firearm save general design and colour. There is no basis upon which anyone could conclude that the black satchel in 31A, 31B, 31C or exhibit 32 resemble each other. There is no basis upon which anyone could link any of those exhibits to the impugned satchel with the firearm at trial. As an aside, even defence witness Ondre Alleyn testified to his believe that the black bag in video exhibit 32 was not the same bag as that exhibited in exhibit 31(a). This witness was clear that they looked like different bags. Again, this is simply the opinion of this witness.

[123] In the end, I find that this body of evidence simply demonstrates that Bogdan possessed a black satchel. Black satchels are a common fashion accessory used by many in the greater Toronto area. One might even possess more than one black satchel.

[124] I did not draw a conclusion that because Bogdan possessed a black satchel in the exhibits, he might have possessed the black satchel with the firearm seized by the police. For that matter, I did not draw a conclusion that because there is electronic evidence before the court demonstrating the defendant possessed a black satchel, he must have possessed the black satchel seized by the police.

[125] In that vein, I should also indicate that I am unable to conclude that the impugned black bag was worn by the defendant in the Instagram video exhibit. Certainly, there is a strong resemblance. But based on my review of the evidence I can not conclude that they are the same.

4. Ornamentation

[126] The black satchel with the firearm seized by the police had two distinct features of ornamentation: a silver star, and a “Delta9” tag. During cross-examination the defendant testified that he had received three Dior colognes as gifts and those colognes were in the washroom of the apartment. The defendant also conceded that he had received a gift of a Dior cologne with a trinket like a gold or silver star. He agreed it was something that one could put on a key chain. [^17] The black satchel seized by the police was adorned with a Dior silver star.

[127] During cross-examination the defendant testified that he had seen Delta-9 marijuana products in a dispensary. He testified to a great love and interest in marijuana. He also explained that the large quantity of marijuana found in his bedroom was not purchased from a dispensary – he grew it himself on a friend’s private farm. He also agreed that he followed Delta-9 on Instagram. The black satchel with the firearm was adorned with a silver tag demarked Delta-9 measuring approximately 1.5 inches by 0.5 inches wide.

[128] It is significant that the satchel with the firearm was adorned with a Dior star and a Delta-9 tag. Both of these ornaments were attached to a zipper on the seized black satchel. The defendant testified that these ornaments did not belong to him. I don’t believe him. It is implausible that this was mere coincidence.

5. Location of the Black Bag and Firearm Prior to Search Warrant

[129] Upon entry to the apartment for the purpose of executing the search warrant, DC Ghazarian observed the cocaine on top of the stove in plain view and a black satchel sitting on top of the toaster. He noted that it was unusual for a black satchel to be on top of a toaster. He noted that the black satchel was unzipped. He examined the satchel and immediately noticed a firearm. He returned the black satchel back on top of the toaster attempting to recreate his observations and took a photo: (See exhibit 4). He was also aware that a pre-search warrant entry video potentially could have captured the satchel in situe. He then rendered the firearm safe. The firearm was loaded with four rounds of 40 calibre ammunition in the magazine and one 9-millimetre round.

[130] Exhibit three is the search warrant video taken by the police prior to any search activity disturbing the scene. At approximately 14 seconds to 17 seconds the toaster with the black bag is captured. At approximately 20 seconds, the video shows the zipper on the black satchel is open. If an averaged-sized person were standing in front of the stove, the cocaine would be directly in front of the person, the toaster would be in arms-length to the right, and the pill box within arms-length to the left. The kitchen is a very small location in a very small one-bedroom apartment.

[131] At trial the defendant testified that he used the toaster during his time in the apartment. The defendant also testified that he saw the satchel on top of the toaster when he was measuring the cocaine at the stove for the final trafficking event. But he also testified that he had never seen the black satchel anywhere else in the apartment prior to observing it on top of the toaster. [^18]

[132] The defendant was confronted with his testimony on the application: [^19]

Q. There is a toaster. Ah and probably a microwave or maybe bread-baker. Are those appliances yours? A. No Q. They’re his? A. They are his. Q. And that black bag is yours? A. The black bag ahhh the black bag belonged to Bogdan. Q. And he left it on the toaster? A. Ah. No. Q. Where did he leave the black bag. A. In his room. Q. And you put it on the toaster. A. Yes. Q. Do you use the toaster. A. If I use the toaster? Q. Do you use the toaster for toast? A. Sometimes.

[133] The defendant testified that he did not recall this testimony from the application but accepted that he might have provided this testimony. He went on to testify twice that he had never seen the satchel anywhere other than the toaster area and that he had not seen the satchel prior to January 10^th^, 2023.

[134] I do not believe the defendant’s testimony at trial. There is a world of difference between the defendant physically moving a black satchel from the bedroom to the toaster, and the defendant claiming that he never saw the black satchel before January 10^th^, 2023. The defendant admitted he made toast. He must have seen that black satchel sitting on the toaster. He must have handled the black satchel. This line of testimony negatively impacted the defendant’s credibility.

6. CIBC Card and TD Card

[135] Inside a pocket of the interior of the seized black satchel with the firearm, the police found a small plastic bag containing two bank cards. One bank card was from CIBC and embossed with the defendant’s name. The second bank card was from TD Bank but had no name. This card was together with the CIBC card in the same small plastic bag.

[136] The defendant testified in support of a speculative theory for the innocent presence of his CIBC card in the bag with the gun. He explained that he and Bogdan had indulged in cocaine on a previous occasion. He theorized that the CIBC card remained in the apartment and that Bogdan must have placed it within the black bag. Further, the defendant did not need to use the card and did not use the card given his other banking arrangements. He adduced evidence showing that the CIBC card was not used during the timeframe of the allegations.

[137] The defendant’s theory is pure speculation. There is no actual evidence that Bogdan decided to retain the defendant’s bank card in a small plastic bag. There is no actual evidence that Bogdan decided to place the defendant’s bank card within the black satchel for safekeeping. There is no direct evidence as to how the defendant’s CIBC card arrived in the black satchel next to the firearm.

[138] The defendant is entitled to speculate and rely on anything including the presence or absence of evidence in support of reasonable doubt. But I am obliged to consider plausible theories and other reasonable possibilities which are inconsistent with guilt. I am also allowed to use common sense and life experience when assessing reasonable doubt.

[139] While I accept the defendant’s testimony and corroborative CIBC banking evidence that he was not using the card in March and April 2023, I do not subscribe to the speculative theory he advanced. Using common sense and life experience, it is often the case that persons place their bank cards in a wallet, purse, or vessel of some kind. I do not believe the defendant’s testimony that he had no idea how his CIBC card came to be placed within the black satchel. In my view this is powerful evidence of the defendant’s knowledge, possession, and control of the firearm also within the same black satchel.

[140] As for the TD card, I have considered the fact that the absence of evidence may contribute to reasonable doubt. It would have been a simple matter for the police to do a production order or use a device to read the mag stripe on the TD bank card. This was not done.

[141] On the one hand the card was stored next to the defendant’s CIBC bank card in a plastic bag. This is a peculiar storage approach for Bogdan, who the defendant believes had an affinity for using his CIBC bank card to ingest cocaine, and simply retained the CIBC card with his firearm. The defendant had no speculative explanation for the presence of the TD Card with the CIBC card. The defendant had no speculative explanation for why Bogdan would retain two bank cards in this manner.

[142] In the final analysis, I simply lack information as to who was registered to the TD card. The defendant testified that he did not have a TD bank account. A criminal trial rarely answers every question.

7. The Defendant’s Proffer

[143] During direct examination the defendant adduced into evidence a black Hershel brand satchel that he claimed to own. [^20] I assume that this was in support of the contention that the impugned black satchel with the firearm did not belong to the defendant.

[144] During cross-examination the Crown played exhibit 24 for the defendant – an Instagram video depicting the defendant wearing a black satchel. The Crown suggested that the satchel depicted on video was not the same as the satchel adduced into evidence by the defendant.

[145] While it would be open for a person to possess more than one black satchel, let alone more than one Hershel brand black satchel, this was not the defendant’s evidence. He testified that the satchel he adduced into evidence was the same as the satchel he was wearing in the Instagram video. His testimony was that both satchels were identical.

[146] I have also had the opportunity to examine the physical exhibit while watching Exhibit 24 in my chambers. While they are both black bags, they are clearly not the same. Exhibit 24 certainly shows that the defendant had access to a Hershel brand black satchel. The satchel on this video also has a gold zipper similar to the one put into evidence by the defendant. But the strap on the bag in exhibit 24 tapers from wide to narrow as it extends from the bag. Further, the white Hershel logo is on the centre of the bag on Exhibit 24. The bag put into evidence has the white Hershel logo on the right side of the bag, not the centre.

[147] That the defendant would not acknowledge these realities when specifically pointed out to him during cross-examination could mean that his observational reliability is compromised, or his credibility is impaired because he was unwilling to acknowledge the differences. Either way, the defendant did not acknowledge this reality.

[148] The Crown cross-examined the defendant about exhibit 25. In that video the defendant was wearing a black satchel where the zipper was not visible. Clearly there was a flap covering the area where the zipper would be if it was a similar bag. The defendant would not acknowledge that the black satchel depicted had a flap that covered the zipper. Despite several opportunities, the defendant would not admit that which was clearly visible in court and on the video – there was no visible zipper because material, a flap, was covering the zipper.

[149] Then, compounding this performance, I witnessed the defendant physically manipulate the bag in court and crease the top of the bag in an attempt to cover the zipper with excess material. Having regard to this performance, I register an obvious credibility concern. The physical bag is preserved in evidence. Notwithstanding the defendant’s physical handling of the bag in this manner, no flap could be manufactured.

[150] It is also important to observe that this issue was generated by the defendant’s decision to adduce evidence of another black satchel. The defendant was not compelled to adduce this evidence. In fact, the evidence of the police was that no one ever saw the defendant in possession of a black satchel bag.

[151] Apart from the credibility impact on the defendant, the net result of this area of evidence was that the defendant demonstrated that he had access to more than one black satchel bag.

8. Conclusion

[152] The firearm was found within an unzipped black satchel on top of the toaster in proximity to the fentanyl and cocaine in a small kitchen in a small apartment. The defendant acknowledges preparing the cocaine. He acknowledges using the toaster.

[153] In his trial version of events, as acknowledged during cross-examination, he would have had to move the satchel to make his toast in the morning. Given the weight of the satchel bearing a firearm and the fact that it was unzipped, it would have been inconceivable that the defendant did not notice the firearm. If I accepted the defendant’s testimony on the application, there would have been an even greater opportunity to assess the weight of the satchel and the presence of the firearm. Even on the defendant’s two versions, it is inconceivable that he was unaware of the loaded firearm. I am satisfied that he would have noticed that a firearm was within the black satchel.

[154] The firearm was in the black satchel on top of the toaster. The black satchel was unzipped. The bag had one bank card with the defendant’s name on it and a second bank card with no name. The police did not investigate the mag stripe data on the second card with no name. The prosecution has not proven an evidentiary link between the second bank card and the defendant.

[155] I do not believe the defendant’s denial of possession. Even if I accepted either of the two different versions of events provided by the defendant, I would find that he was in possession of the firearm. On the record set out in this judgment, I infer that he had knowledge and control over the firearm. I am satisfied beyond a reasonable doubt, on all of the evidence, that the defendant knowingly possessed the loaded firearm on top of the toaster.

E. Possession of Fentanyl

[156] The police seized a quantity of fentanyl in an orange pill bottle from the kitchen countertop. The pill bottle was within a clear plastic bag. Also in the plastic bag were a number of personal medical documents and bail supervision documents belonging to the defendant.

[157] At first, DC Ghazarian testified that the documents were “stuffed”, as if he was going to reference the item being in the plastic bag. He then paused, and indicated the documents were located on the back of the counter. The pill bottle was located inside the plastic zip lock bag. [^21]

[158] DC Ghazarian’s did not note the location of items seized within his memo book. He prepared a list of seized items in a “search warrant package”. He also prepared a list of seized items in a “General” property report wherein he made the following entry: “personal documents belonging to the accused located on the kitchen counter”.

[159] DC Ghazarian also reviewed the search warrant video to refresh his memory. He testified that there were some documents inside the zip lock back with the pill box which can be seen on the video. There were also some documents on the counter. DC Ghazarian was not able to distinguish specifically where the documents were located. He was also unable to stipulate specifically if any documents were found within the envelope.

[160] DC Ghazarian testified that he could see an envelope with a stamp depicted on the search warrant video. This envelope was found within the clear plastic bag. I am able to see an envelope addressed to the defendant with stamp. This envelope is clearly located within the ziplock bag when one reviews the search warrant video. [^22]

[161] The defendant testified that he did not possess the fentanyl found within the apartment. Given his impaired credibility, I do not accept the defendant denial at stage one of W.(D.).

[162] The defendant testified that he had placed personal documents and papers in a drawer in the apartment.

Q. Similar questions in regards to the pill bottle with fentanyl. Was that your pill bottle? A. No. It wasn't. Q. Okay. There was some documents inside of a plastic bag where the pill bottle was found, which I believe had your name on it. Are you able to explain how those documents got there—and first, for us, confirm whether or not those are your documents. And explain how they got there. A. Those are my documents. My documents got there; I left them in the drawer by Bogdan's. Q. And why did you do that? A. I just put them there as I believe that it would have been a safe place to store them. Q. And can you tell us, how to did the bag—those documents, go from the drawer at Bogdan's place to a plastic bag on the counter in the kitchen, with a fentanyl bottle next to it? A. There was a party before. And my ex-girlfriend and I, [named of girlfriend], we were cleaning up. And she moved a bunch of things around. Q. Do you see her do that? A. I saw her going through the drawers, the cabinets, and drawers.

[163] At stage two of W.(D.), I note that the defendant’s testimony stood alone. Given issues with the defendant’s credibility, I looked for corroboration. The defendant’s ex-girlfriend was not secured as a witness for trial by the Crown or Defence. This witness was not available to potentially corroborate the defendant’s speculative explanation for the presence of his documents within the ziplock bag.

[164] I do not understand how “cleaning up” after a party would involve removing the defendant’s personal documents from a drawer – in particular medical documents documenting the defendant’s need for a common antibiotic – and placing them on a counter in the kitchen.

[165] I also do not understand why the defendant’s ex-girlfriend would obtain an envelope addressed to the defendant and place it within the Ziplock bag. In any event, the defendant’s proffered “explanation”, even if true, was sourced in the defendant’s speculative belief. The defendant did not specifically testify that he observed his ex-girlfriend move his documents.

[166] On the other hand, I must also acknowledge that there is no legal bar to the defendant speculating. Indeed, he was invited to do so during his testimony. The defendant is entitled to acquire support for reasonable doubt from any source. Further, the defendant is not required to “prove” that his girlfriend did in fact “clean up” and place his documents proximate to the fentanyl.

[167] In the final analysis, I did register modest support for the defendant’s testimony at stage two of W.(D.) for several reasons.

[168] First, I must register the fact that the defendant testified that he did not use or sell fentanyl.

[169] Second, I registered modest support for the defendant’s denial despite his impaired credibility at trial. Put another way, unlike the defendant’s proffer of “the black satchel” or his testimony about Bogdan’s dog, I was not prepared to totally reject his evidence on this point. Thus, his testimony registered some meagre support for reasonable doubt in my mind. His denial of possessing fentanyl was unencumbered by his endorsement of other implausibilities.

[170] Finally, I must once again recognize that reasonable doubt does not require a foundation in physical or testimonial evidence. Reasonable doubt may rest on the record adduced at trial and the absence of evidence. Thus, having regard to analysis required at stage two of W.(D.), I would acquit the defendant given reasonable doubt.

[171] In any event, even if I am wrong to credit his testimony at stage two of W.(D.), I will move on to address the third stage of the W.(D.) analysis.

[172] The pill bottle itself is not in evidence. Often pill bottles have information displayed on them (e.g., prescription, name of client). There is no photo of the pill bottle displaying the presence or absence of identifying information.

[173] When I compare Exhibit 3 at 14 seconds with Exhibit 11, I can see that the pill bottle is not oriented in the same direction, so I infer that it has been moved in some manner. When I zoom in on Exhibits 10 and 11 and look at the item adjacent to the white cap on the orange pill bottle, I am concerned that there is in fact a second similar container of some kind with red inked words on the top. This is unexplained in the record at trial.

[174] With the exception of an (empty?) white envelope with a stamp, I am unclear exactly where the personal documents of the defendant were found and how proximate, or distant, they were to the pill box.

[175] Particularly where it is abundantly clear that possession of items is going to be an investigation issue, the police should carefully document relevant evidence. I am not satisfied that this was done in this case. I am not confident that the location of the defendant’s documents is probative of the defendant’s possession of the pill bottle.

[176] These weaknesses erode the strength of the prosecution case. In a criminal trial, reasonable doubt must be resolved in favour of the defendant. Particularly where the circumstantial record does not admit of a singular inference of guilt. The prosecution has not proven beyond a reasonable doubt that the defendant constructively possessed the fentanyl.

IV. Conclusion

[177] Credibility and reliability issues often predominate criminal trials. In this particular criminal trial, the credibility of the defendant was an unavoidable issue requiring a detailed explanation. On the positive side, the defendant is an intelligent and articulate person. He is polite. He presented very well in Court. To use the vernacular – the defendant is a likeable person. Even the undercover officer testified in support of this conclusion.

[178] The defendant was also forthright in many areas of his testimony. He testified in support of findings that he trafficked to the undercover officer. He admitted possession of the cocaine in the apartment. He also admitted to his personal use of non-medically prescribed drugs.

[179] But it is also true that cross-examination at trial exposed implausibilities in the defendant’s version of events. I have set out several examples (but not all) in this judgment where the defendant’s credibility was damaged.

[180] I would also observe that even on the admitted counts, the defendant’s testimony that he trafficked cocaine to help a “friend of a friend” for no personal financial gain attracted credibility concerns. The notion that the defendant would borrow an ex-girlfriend’s mother’s car to travel a long distance to obtain the cocaine is questionable. Time, distance, and acquisition of a borrowed car were no impediment to assisting a stranger with the acquisition of cocaine. His testimony about “referral incentives” being supplied by his dealer defies common sense. No thinking person with any life experience could endorse this version supplied by the defendant.

[181] Throughout this judgment I have made it clear that the rejection of the defendant’s testimony alone can not ground a criminal conviction. A finding that the defendant testified to implausible or improbable scenarios alone, may not ground a criminal conviction. Leaving aside features of the defendant’s testimony and credibility, it is important to examine the evidence through the lens of the criminal burden of proof and the guidance in Villaroman. The proper focus of the Court must be the record produced and the interplay between the criminal burden of proof and reasonable doubt.

[182] Notwithstanding the defendant’s credibility issues, I explain in this judgment why stage two and three of W.(D.) and the guidance of Villaroman require an acquittal on the possession of fentanyl count. The same framework was applied to assess the case on the possession of the firearm. This written judgment represents the reasoning behind the analysis in furtherance of those considerations.

Released: August 1, 2024 Signed: “Justice M.S.V. Felix”

[^1]: Count 4 was dismissed after a motion for a directed verdict. [^2]: It is not necessary to stipulate this person’s last name. [^3]: The record adduced on the Charter application was not admitted at trial except for portions addressed in the agreed statement of facts at trial and areas addressed during cross-examination of the defendant. [^4]: Agreed Statement of Fact Evidence of DC Valino from the s.8 application applied to the trial on consent. [^5]: I am not permitted to rely upon information that the police obtained about Bogdan on the Charter application as there was no agreement to admit this information at trial. [^6]: The defendant testified that he did not use or sell fentanyl. He also testified that he had witnessed Bogdan use fentanyl. [^7]: Relevant to possession of the firearm issue addressed below. [^8]: He also testified to receiving wire transfers from girlfriends. [^9]: Below under the heading “Conclusion” I briefly outline the defendant’s evidence about the effort he expended to traffic in cocaine without expectation of monetary benefit or gain. [^10]: This evidence was not admitted a trial. [^11]: Information #0625, Count 7. [^12]: I explain the evolution of this testimony below. [^13]: Transcript of Proceedings, page 60, June 17, 2024. [^14]: Transcript of Proceedings, Page 144, June 17^th^, 2024. [^15]: For example, that the photos were somehow deleted, or there was some problem with iCloud or some problem with his iPhone. [^16]: Exhibits 31A, 31 B, 31C, from Sept 4, 2022, and video Exhibit 32 from January 8^th^, 2023. [^17]: Transcript of Proceedings, June 17, 2024, pages 116-118. [^18]: Transcript of Proceedings, June 17^th^, 2024, pages 113-114. [^19]: February 14^th^, 2024, Digital Recording, at 3:07:02 PM [^20]: Exhibit 21. [^21]: In my view, best depicted in Exhibit 3 at 14 seconds. [^22]: Exhibit 3, at 14 seconds.