ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-00656
DATE: 20120801

B E T W E E N:

HER MAJESTY THE QUEEN

Carol Shirtliff-Hinds, for the Crown

Crown

• and -

OSHANE RICARDO DALEY Defendant

Nyron Dwyer , for the Defendant

HEARD: July 30, 2012

REASONS FOR DECISION

LAUWERS J.:

[ 1 ] The accused, Oshane Ricardo Daley, is charged that on January 6, 2011 he trafficked in a controlled substance, cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . He is also charged that on January 6, 2011 he possessed property or proceeds of property, the amount being $340.00 in cash, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence, punishable by indictment, contrary to section 354(1) (a) of the Criminal Code , and thereby committed an offence contrary to section 355 (b) of the Criminal Code .

[ 2 ] The defence noted at the outset that Mr. Daley does not challenge the certificate of the analyst that the substance alleged to have been trafficked was cocaine, nor the continuity of the evidence. The defence does not dispute that the accused was in possession of some of the “buy money” used by the police as part of the undercover transaction upon his arrest, nor that the accused was present when the substance was purchased. Very few of the substantive facts are in dispute.

The Facts

[ 3 ] Generally the timing notes set out below come from the notes of the officer whose evidence is being discussed. The timing does not line up perfectly as a result but nothing turns on any discrepancies.

[ 4 ] Ahmad Salhia has been employed by York Region as a police officer since August 2003. He was working with the Drugs and Vice Unit in an undercover operation involving the accused on January 5 and 6, 2011.

[ 5 ] On January 5, 2011, Officer Salhia made contact with Alicia Gross and Brian Wasserman, whom he identified as two cocaine users. They lived at 2020 Sheppard Avenue West in Toronto. It is a high rise apartment building running north and south on the street with the front door facing west and the back door facing east joined by a common lobby. He arranged to meet them there in order to buy a “half ball” of crack cocaine, which weighs 1.7 grams. Officer Salhia arrived there at 9:30 p.m. and at 9:32 p.m. met with Mr. Wasserman and Ms. Gross in the turning circle at the front of the building. They advised him that they did not have the cocaine but would arrange for their dealer to supply them, on the understanding that they would be permitted to “chip off” a piece of it for their personal use. At about 9:44 p.m. they met their supplier and returned with the crack cocaine after chipping off a piece. Officer Salhia gave them $120.00 in twenty dollar bills from the police buy money recorded for that purpose. This was a set up, and it was followed on January 6, 2011 by an undercover operation aimed at identifying and arresting the supplier.

[ 6 ] Officer Salhia testified that he spoke to Ms. Gross at 8:17 p.m. on January 6, 2011 and arranged to buy 1.7 grams of crack, saying to her, “Can you hook me up like last night?” They arranged to meet at the same location.

[ 7 ] Officer Salhia was working with Detective Ryan Hogan and Detective Sean Reid, who were “road bosses,” and with Detective Constable Sean Whittaker. Each had his own vehicle. The officers were connected by communication devices. D. C. Whittaker was located to the west of the apartment building and was able to see the front of the building. Detective Hogan was on the east side of the building and able to see the back of the building. Detective Reid was at the north end of the building on a rise about fifteen to twenty feet above the parking lot level. His vantage point allowed him to see both the driveway at the front of the building and the parking lot at the back.

[ 8 ] Officer Salhia arrived at 9:42 p.m. and called Ms. Gross. She said she was coming down with Mr. Wasserman. At 9:52 p.m., Officer Salhia met with Mr. Wasserman and Ms. Gross and explained why he was late. They told him that they did not have the crack but that their supplier was on the way. After surveying the damage to the front of his car, by which Officer Salhia explained his lateness, they got into his car and waited. At 9:59 p.m., Ms. Gross advised that the supplier had arrived and asked for $120.00 in cash. Officer Salhia gave her six twenty dollar bills out of the supply of buy money used by the undercover team. Ms. Gross went back inside the building and returned at 10:05 p.m. Mr. Wasserman remained in the rear seat of the car. Officer Salhia testified that when Ms. Gross got back into the car, she took the drugs out of her mouth, where they had been hidden in a plastic wrapping, and chipped off a piece by biting it. The evidence was that the remnant purchased by Officer Salhia weighed 1.3 grams so that the amount Ms. Gross retained was .4 grams.

[ 9 ] From his surveillance spot to the north Detective Reid saw Officer Salhia enter the turning circle at the front of the building. He noted that Ms. Gross and Mr. Wasserman came out of the building at 9:50 p.m., got into the car, then got out of the car and moved to the front of the vehicle, and then at 9:54 p.m. got back into the car. Ms. Gross and Officer Salhia were in the front seat. According to Detective Reid’s timing, at 9:59 p.m., Ms. Gross got out of the car, walked into the building, and at 10:00 p.m. she exited the rear of the building and went to a vehicle that was in the rear parking lot.

[ 10 ] Detective Reid noticed a silver car moving towards Ms. Gross in the rear parking lot but because of the curve of the ground, he did not see her get into the car. Detective Hogan was able to see Ms. Gross come out of the back of the building and enter the rear seat of the silver car. There were two men in the car. The driver was the accused and the passenger was Germaine Haye. Their car had licence number BJMM 792. After Ms. Gross got into the car, it reversed into a parking spot. She was in the car for two to three minutes and then got out and went back into the building.

[ 11 ] Detective Reid noted that Ms. Gross left the car in the rear lot at 10:03 p.m., went back through the building and got back into Officer Salhia’s car. Although his notes record time in minutes, that is because the digital clock Detective Reid used only shows minutes. By his estimation it took her no more than ten to fifteen seconds to traverse the building each time.

[ 12 ] According to D.C Whittaker, Ms. Gross left Officer Salhia’s car and entered the building. She reappeared at 10:06 p.m. and got back into the front passenger seat of Officer Salhia’s car. At 10:07 p.m. she exited his car. At 10:08 p.m. Mr. Wasserman exited the car and went into the apartment building.

[ 13 ] Officer Salhia, D.C. Whittaker, Detective Reid, and Detective Hogan followed the silver vehicle to a low rise apartment building at 34 Brookwell Road. The trip took five to six minutes. The accused parked the vehicle and he was then blocked in by the officers’ cars. Detective Hogan exited his car and approached the driver’s side. The accused was the driver and he was focusing on the officers approaching from the passenger side. Fearing that he might be struck by the car, Detective Hogan drew his weapon, pointed it at the accused and told him he was under arrest. The accused was immediately compliant. Detective Hogan holstered his weapon. The accused followed Mr. Haye out through the passenger side and he was handcuffed.

[ 14 ] D.C. Whittaker searched the accused and found $320.00 in his left front pant pocket, which he turned over to Detective Reid; five of the twenty dollar bills taken from the accused were police buy money. D.C Whittaker arrested Ms. Gross later that evening at 2020 Sheppard Avenue West, searched her and found $25; one twenty dollar bill taken from Ms. Gross was police buy money.

[ 15 ] Officer Cari Launen testified that on January 6, 2011 he was employed with York Region Police Service and was in uniform. He was dispatched to 34 Brookwell Road and took custody of the accused, whom he identified in court. He took him to the station at 2700 Rutherford Road, brought him into the booking room and did a “strip search”. He found cocaine in bags in the toes of the shoes of the accused and turned it over to Detective Reid. Officer Launen assisted the accused to get in touch with his lawyer.

Discussion

[ 16 ] The Crown submits that the facts set out above prove that Mr. Daley trafficked in crack cocaine on January 6, 2011.

[ 17 ] The first count is of trafficking for section 5(1) of the Controlled Drugs and Substances Act . It provides that: “No person shall traffic any substance included in Schedule 1…or in any substance represented or held out by that person to be such a substance.” Cocaine is listed in Schedule 1.

[ 18 ] The word “traffic” is defined in section 2(1) of the Controlled Drugs and Substances Act , which provides:

“traffic” means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

[ 19 ] The defence submits that the evidence is entirely circumstantial. The applicable law is set out by Bourque J. in Her Majesty the Queen v. Liu [2011] O.J. No. 1322 (OCJ), in paras. 22-24 , which Mr. Dwyer submits applies with necessary modifications to the facts in this case:

22 In Hodge's case the rule of circumstantial evidence is stated as follows:

Before I can find the defendant guilty I must be satisfied not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.

23 In other words the evidence must both be consistent with guilt and inconsistent with any other rational conclusion.

24 While I would agree that the actions of the defendant on that day could be consistent with guilt, I also conclude that they are not inconsistent with any other rational conclusion.

[ 20 ] In Liu, Bourque J. acquitted the accused, as explained in paras 25-26:

25 More importantly, the two hours when the defendant was not in control of anything, and particularly with the depositing of items into the shipping crate, lead to the rational inference that the two boxes of pure Ecstasy could have come from Minh Lieu.

26 As a final and important matter, the fact that there is no consistency in the evidence as to whether the boxes from the garage were indeed the boxes that made their way into the shipping crate leads me to have a reasonable doubt. Add to this the fact that none of the finger prints of the defendant were found on any of the boxes in the shipping crate is another factor leading me to have some reasonable doubt.

[ 21 ] I note that there is complete continuity of the evidence in Mr. Daley’s case and minimal delays in the playing out of the events.

[ 22 ] It seems to me that the formulation that Bourque J. adopted in Liu would revive the rule in Hodge’s Case even though the Supreme Court of Canada effectively rejected it in R. v. Cooper [1978] 1 S.C.R. at pages 865 -66. I therefore decline to follow Liu. As the authors of Sopinka, Letterman & Bryant note in the Law of Evidence in Canada (3 rd Edition – LexisNexis) at para. 2.81:

In R. v. Cooper , the Supreme Court of Canada rejected the notion that exclusive reliance on circumstantial evidence requires any special warning to the jury…This case has removed any relevance of the distinction between direct and circumstantial evidence.

[ 23 ] The core question, as noted in Cooper , is whether the Crown has proven guilt beyond a reasonable doubt. In relation to circumstantial evidence, it is the prospect that there is another reasonable explanation for the circumstance that might give rise to that reasonable doubt.

[ 24 ] As Justice Watt notes in his Manual of Criminal Evidence , 2012, in section 9.01:

Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue. It is for the trial judge to determine whether circumstantial evidence is relevant.

Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.

[ 25 ] Taking these elements together, the proposed alternative explanation of the circumstances must be reasonably plausible on the facts as they are found, not speculative.

[ 26 ] The defence submits that there are other reasonable inferences that can be drawn, and cites three. If any one of these scenarios is true then Mr. Daley did not supply the crack cocaine to Ms. Gross and through her to Officer Salhia.

[ 27 ] First, the defence notes that the role of Mr. Haye, who was the passenger in the car driven by Mr. Daley, is unknown. It is possible, Mr. Dwyer asserts, that Mr. Haye sold the crack cocaine to Ms. Gross who paid him, and that Mr. Haye may well then have given the money to the accused, say, to pay a debt. This scenario is literally speculative and conjectural, and has no basis in the evidence.

[ 28 ] Second, Mr. Dwyer argues that there was enough time between Ms. Gross’s exit from Officer Salhia’s car at the front of the building and her passage through it to the car driven by Mr. Daley at the rear, and then back again, for her to have gotten the drugs from somewhere else altogether. In my view there is no factual basis for this inference. Ms. Gross took seconds to traverse the building in going from the undercover officer to Mr. Daley and back again. Although the time is measured in minutes in the notes, I accept Detective Reid’s evidence, and find no reasonable basis for the inference that Ms. Gross had time to get the cocaine from some other place.

[ 29 ] Third, Mr. Dwyer submits that Ms. Gross might have had the drugs on her the entire time and that she left Officer Salhia’s car to go to the car operated by Mr. Daley for some other purpose. This scenario would make all of Ms. Gross’ actions in going to Mr. Daley’s vehicle a complete waste of time or a ruse for no purpose that I can discern. There is no rational basis for this scenario, which therefore does not raise a reasonable doubt.

[ 30 ] While I agree with the defence that the evidence is circumstantial, I find that Mr. Daley trafficked cocaine to Officer Salhia through the assistance of Ms. Gross. Mr. Wasserman and Ms. Gross were users undertaking to “middle” the deal between Officer Salhia and Mr. Daley. For doing this Ms. Gross took $20 in buy money and a chip of the crack cocaine, and Mr. Daley was paid $100.00 in buy money. The fact that the accused was found with a bag of cocaine in the toe of each shoe and $100 of buy money leads to the only logical inference, which is that he was the supplier. The fact that Ms. Gross ended up with $20 of buy money reinforces her role in facilitating the transaction.

[ 31 ] I find Mr. Daley guilty beyond a reasonable doubt of the first charge of trafficking.

[ 32 ] The second charge that Mr. Daley faces is under section 354(1) (a) of the Criminal Code , which provides:

Everyone commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing are of the proceeds was obtained by or derived directly or indirectly from (a) the commission in Canada of an offence punishable by indictment;…

[ 33 ] The fact that Mr. Daley ended up with $100 of buy money ties him to the transaction. He was a direct participant in the transaction and knew that the money was the proceeds of drug trafficking. Even on the defence’s far-fetched scenario that it was Mr. Hayes who gave the buy money to Mr. Daley to pay a debt, Mr. Daley, having been a witness to the drug transaction, would also have known that the money was the proceeds of a drug transaction.

[ 34 ] I find Mr Daley guilty beyond a reasonable doubt of the second charge, but find that the Crown has proven only that $100.00 of the money in Mr. Daley’s possession, being the police buy money, qualifies as the “property, thing or any proceeds” to which the Code refers.

[ 35 ] I will enter a conviction on both charges.

Justice P.D. Lauwers

Released: August 1, 2012