COURT FILE NO.: 10-G8643

DATE: November 1, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

HAWI NDALO

Defendant

James Meloche, for the Crown

Richard Addelman, for the Defendant

HEARD: October 29 and November 1, 2012(Ottawa)

REASONS FOR Judgment

Lalonde J.

INTRODUCTION

[1] The accused Hawi Ndalo (“Mr. Ndalo”) is charged with one count of possession of crack cocaine for the purpose of trafficking, one count of possession of cannabis marijuana, and with a third count of possessing money not exceeding five thousand dollars knowing that all or part of it was obtained or derived directly or indirectly by the commission of a crime namely trafficking in illicit drugs. The issue for the trial was whether the accused possessed the cocaine and marijuana at the time of his arrest. Did he have knowledge and control of the drugs found in his apartment at 1184 Gladstone Avenue, in the City of Ottawa (“1184 Gladstone”).

[2] The Crown produced evidence from seven police officers. The last officer to testify was qualified an expert on the subject of dealing in illicit drugs. The accused, Mr. Ndalo, testified on his own behalf. No other witnesses were called. There was no Charter application in this case and there was no challenge on the drug analysis or in obtaining of a warrant to enter Mr. Ndalo’s apartment. This happened in the afternoon.

OVERVIEW

[3] The surveillance of Mr. Ndalo’s apartment at 1184 Gladstone was made by police officers, Luc Grenier, Stéphane Gilbert, Sam Fawaz, Douglas Hill, Govent Schoorl and Norman Redmond. The surveillance took place on September 29 and October 1, 4, 7, 8, 15 and 19 of 2010. On October 20, 2010 Mr. Ndalo was arrested with Isabelle Roy at 1184 Gladstone, Apartment 2.

[4] The police officers testified that they observed 12 short meetings at Mr. Ndalo’s apartment building lasting one half hour or less except for one meeting, when Mr. Ndalo was seen having a BBQ on his balcony for two friends. All the short visits happened when Mr. Ndalo was at home. People arrived, entered without knocking, and left looking at their hands, and gave indicia of drug transactions.

Mr. Ndalo claimed that the marijuana, except for a small quantity, was his own but that Isabelle Roy, an exotic dancer who lived with him, was a crack cocaine addict. The crack cocaine found was hers and he denied being a trafficker of either crack cocaine or cannabis marijuana. On October 20, 2010, police officers seized 378.3 grams of cannabis marijuana in Mr. Ndalo’s apartment.

EVIDENCE LED BY THE CROWN

[5] Detective Constable Grenier (“D.C. Grenier”) testified that acting on an informer’s tip, he went to 1184 Gladstone on September 29 to familiarize himself with the apartment building and verify the description of Mr. Ndalo given to him. He determined that Mr. Ndalo lived on the second floor of a duplex, accessed through a front door on Gladstone Avenue. A side door on the west side of the duplex provided access to the ground floor apartment. He reattended Mr. Ndalo’s building on October 1 and at that time he saw and identified Mr. Ndalo from the description he had been given by the informant. On that occasion he also saw an unknown white male arrive on a bicycle; he did not knock and entered the same door by which he had seen Mr. Ndalo arrive minutes earlier. A minute later, that unknown white male left. This happened in the afternoon.

[6] On October 4, 2010, D.C Grenier saw, after 6:00 p.m., an unknown white male arrive while he was doing surveillance of Mr. Ndalo’s apartment. The unknown male signalled to Mr. Ndalo, who placed a finger on his lips, as if to say “keep quiet”. He went upstairs to Mr. Ndalo’s apartment and was joined later by another unknown male. Both unknown males joined Mr. Ndalo at the BBQ located on the second floor balcony facing Gladstone Avenue. All three people on the balcony entered the Ndalo apartment and 14 minutes later the two unknown males left the building, each going their separate ways without acknowledging each other.

[7] On October 7, 2010, Detectives Grenier, Gilbert, Hill, Schoorl and Redmond made observations of the comings and goings outside Mr. Ndalo’s apartment at 1184 Gladstone. D.C. Grenier estimated that he was 50 meters away, observing from his car and acting as a scribe for the other officers. In the afternoon of that day, D.C. Grenier observed Mr. Ndalo meet an unknown male outside the apartment at his car. The hood of the car was raised and Mr. Ndalo and the unknown male entered the car. The unknown male was seen in the front passenger seat looking down on his lap. Five minutes later the unknown male walked down the street. A white female came out onto the balcony and waved at Mr. Ndalo who left with his car. When Mr. Ndalo returned to his apartment later that day, he unlocked the front door with his key.

[8] Officer Gilbert observed an unknown 40-year-old male with a baseball cap enter 1184 Gladstone without knocking. He was joined by a second unknown male; the two persons were also seen by D.C. Grenier. Officer Gilbert estimated that he was 42 feet away from the individuals. Forty minutes later another unknown white male entered Mr. Ndalo’s apartment without knocking. This officer also stated that he came on foot within ten feet of the entrance of 1184 Gladstone and saw a staircase inside leading up to the second floor of Mr. Ndalo’s apartment. He also saw shoes, heard voices upstairs and smelled cooking. Forty minutes later he saw another unknown white male enter the building without knocking, looking to his right and left as he entered. He then left nine minutes later. The officer recalled that he had one of his hands in his pocket as if holding something.

[9] Sergeant Sam Fawaz testified concerning his observations of October 19, 2010. At 18:20 in the evening, he saw an unknown white female knock at the main entrance to 1184 Gladstone. A white female answered the door and let her inside. A second unknown white female arrived and knocked on the door of the main entrance. The female who answered pointed to her Mr. Ndalo’s car coming up the street. Before ending his surveillance the officer testified that he saw one male leave and that male person had been waiting for Mr. Ndalo. Another unknown female also had walked in without knocking.

[10] Detective Hill was also on surveillance on October 7, 2010. He saw a 45-year-old unknown male walk in the front door of 1184 Gladstone without knocking, as did an unknown white female 10 minutes later. When the unknown white female left the building three minutes later, she had looked down at her right hand and then she sort of waved her hand. He noticed another unknown white male enter and leave after seven minutes. Later, a 25-year-old male entered the Ndalo apartment door and exited within ten minutes.

[11] On October 7, 2010, Detective Schoorl also witnessed a 40-year-old male who entered the main door at 1184 Gladstone without knocking and left five minutes later. He testified that a female, who came out five minutes later, exchanged something with an unknown male in the parking lot. The female then looked down the street and the male, who had returned to his vehicle, was looking down on his lap while seated in his vehicle. Detective Schoorl was also involved on October 19, 2010 later in the evening than Sergeant Fawaz. Between 19:24 hours and 20:46 hours, he observed five persons entering and leaving 1184 Gladstone’s main entrance. Their stay lasted from five to 18 minutes.

[12] On October 20, 2010, the police officer involved in the surveillance of the Ndalo apartment executed a search warrant and found 7 grams of crack cocaine and 378.3 grams of cannabis marijuana in Mr. Ndalo’s apartment. Mr. Ndalo was arrested, as was his companion Isabelle Roy. Both were charged with the same offences.

[13] Sergeant Fawaz was searching a computer desk drawer in Mr. Ndalo’s living room apartment on October 20 and he testified that he found a digital scale often used by traffickers in narcotics and that he also uncovered, at the same place, a pill bottle that contained green marijuana leaves. He also found one gram of crack cocaine in a plastic wrapper. He could not recall noticing personal items. Detective Hill testified that on the same date, he seized two cell phones and a hydro bill addressed to Mr. Ndalo.

[14] Officer Schoorl testified that he searched the bedroom where he remembered seeing only men’s stuff. He found money in the bedroom closet: 11 twenty dollar bills, 5 ten dollar bills and 5 five dollar bills. He also found a cellular phone in the bed side table, a functioning digital scale and four clear baggies in a black shoe box containing crack cocaine. Officer Redmond testified that he also searched Mr. Ndalo’s bedroom and found two ziplock bags containing cannabis marijuana. He also found money.

[15] Sergeant Jeffrey Pilon, an experienced officer in the detection of narcotics was called to testify and interpret the significance of what his officers had seen at 1184 Gladstone. He had been allowed to sit in the courtroom while witnesses gave their evidence. His knowledge of illicit drugs comes from years of detective work in the Ottawa Police Service’s Drug Unit and from courses taken on illicit drugs and from his readings on the subject. He indicated that crack cocaine is usually smoked through a pipe to which a flame is held. The cocaine can also be injected or placed on the tongue if it is in powder form. Typically, users consume 0.1 to 0.2 grams of cocaine. Cocaine is a stimulant and users do not eat much and are, as a result, thin as a rake.

[16] Marijuana users tend to eat more as the drug is a depressant and causes users to be sluggish. A one-quarter ounce (7 grams) usually sells for $70 to $100. People arrested with one-quarter pound to a whole pound of marijuana are usually traffickers.

[17] Dealing with the surveillance done by the officers of his unit, he pointed to the fact that people who enter without knocking at the door is an indicator of a drug-buyer and drug-seller relationship and that the typical time of coming and going is usually one to nine minutes. It is the totality of the visits involved in this case and the repetition of the scenarios that establishes a pattern. The number of visits to apartment 2 at 1184 Gladstone over a five-day period points to drug trafficking activity.

[18] Sergeant Pilon explained that:

• the female who handed, what was probably drugs to an unknown male in the parking lot across the street from 1184 Gladstone likely did not have a supply of what was needed but knew where to get it; she is called a middler;

• the “shh” motion made by Mr. Ndalo probably involved someone changing his order for drugs;

• the car repair evidence is nothing new, in that the traffickers tend to make their transactions out of view; there was no evidence the neighbour had helped Mr. Ndalo with his car;

• people attending Mr. Ndalo’s apartment unannounced is an indication of a crack house;

• the location of the illicit drugs, in the bedroom where one of the scales was located, is indicative of trafficking out of view.

[19] Sergeant Pilon testified that a debt list, which was found in the apartment, was not significant. During cross-examination, he was reminded that his report indicated that it was significant. The debt list was not entered as an exhibit.

THE EVIDENCE OF THE ACCUSED

[20] Though it is not strictly speaking necessary, within the W. (D.) framework, to begin with an analysis of the evidence of the accused, it is probably preferable. To be clear, the following review of Mr. Ndalo’s evidence is meant only to canvass his testimony. I will set out the relevant facts as I find them to be, upon my review of all the evidence, later in these reasons.

[21] Thirty-eight-year-old Mr. Ndalo testified that he had resided in Canada for 18 years by the time he was arrested for the present accusations. He had moved to Canada from Kenya. During the first three or four years after his arrival, he attended night school while working during the daytime to earn his living. He stated that he now has the equivalent of grade 12 and works in the construction industry. His jobs are obtained through the construction industry’s labour union which directs him to various companies.

[22] Mr. Ndalo said that he has a daughter in Kenya as well as a mother, whom he helps financially from time to time. He also has a 16-year-old daughter in Montreal that he helps financially. At the time of arrest, he had lived at 1184 Gladstone for a period of 8 years. He stated that he had struck a friendship with Isabelle Roy, an exotic dancer, in 2008. It was not long after meeting her that Isabelle Roy moved in with him at 1184 Gladstone. She used a spare bedroom at first, and then when a sexual relationship was established, he said that she had moved into his bedroom.

[23] Isabelle Roy worked evenings and slept during the day. Mr. Ndalo explained that he worked on construction sites from early morning to approximately 15:30. Mr. Ndalo further explained that both he and Isabelle Roy had an open relationship and slept with other partners. They each had their own friends who came up to the apartment at 1184 Gladstone. Isabelle Roy paid him $400 towards the $900 monthly rent that he paid.

[24] Mr. Ndalo also explained that he is a heavy smoker of cannabis marijuana. He smoked two cigarettes upon getting up in the morning, two cigarettes when he got home from work, and he smoked two more after he went for a swim at the City of Ottawa Plant Bath, in his neighbourhood. He claimed that the crack cocaine found in his apartment by police belonged to Isabelle Roy who was a crack cocaine user. He denied being a crack cocaine user and trafficker saying that the cash found in his apartment was used for his everyday expenses. He said that he did not own a bank debit card or credit card. He said that he had not been aware that Isabelle Roy kept cocaine in a shoe box in the bedroom that he shared with her.

[25] During cross-examination, Mr. Ndalo testified that, with the rent payment he received from Isabelle Roy, his monthly disposable income was around $2,400 and his living expenses approximately $1,400 per month. Mr. Ndalo explained what Isabelle Roy owned in the apartment. He recalled a two drawer dresser that would come up to his knees in which she stored her belongings. She owned shoes and one television. He said that her clothes “was all mixed up with mine”. Next he explained that he had shaved his head after his arrest as the dust rising from his jackhammer breaking concrete at work embedded in his dreadlocks and that it was too difficult to wash out. Although Mr. Ndalo claimed to be close to Isabelle Roy, he did not know her birth date, where she was born, where she went to school and what her parents were called.

[26] Also during cross-examination, Mr. Ndalo recalled that he had picked up the 378.3 grams of marijuana, found in his apartment, from a school friend in Orleans who supplied him regularly. Usually he would buy a small quantity each week, on Saturday, the day he ran out of drug, but the week before his arrest, his friend offered him a bargain of one ounce for $300 which explains why he had that quantity of cannabis marijuana in his apartment.

[27] Mr. Ndalo explained that Isabelle Roy liked to party and would invite friends over. He stated that he assumed that she smoked crack in his apartment and that as long as she did not disturb his work schedule he did not object. He testified that it was not okay for Isabelle Roy to have crack in his house and knew that she carried crack on her person. He was adamant that he did not know that she kept crack in the drawer of the computer desk. He had not seen a pipe that addicts use to smoke crack, suggesting that perhaps she carried the pipe in her purse or hid it in the apartment.

[28] Mr. Ndalo was questioned about the quantity of marijuana he had on hand. He stated that he had just bought more than he usually did. He said he bought small quantities, just enough to get through the week because he smoked six cigarettes every day until Saturday when he would buy more. A friend that he knew since 1995, when he had attended high school, sold him one ounce for $50 instead of $300. That is why he had more than usual. It saved him the time to make a weekly trip to buy the stuff and it saved him money. He did not agree with Crown counsel’s suggestion that such a quantity should have been kept in a freezer as opposed to, on a shelf in the bedroom to preserve its potency. Mr. Ndalo replied that using the freezer would add moisture to the marijuana and decompose it faster. He denied selling marijuana, stating that all he usually purchased was one ounce per week as that was all he could afford.

[29] According to the expert called at this trial, marijuana consumption makes you hungry. Mr Ndalo was challenged on the fact that after he had smoked marijuana, he went swimming without eating. Mr. Ndalo replied that he avoided food before swimming, which he did before supper, as eating would make swimming too difficult.

[30] Mr. Ndalo explained the meeting he had with a neighbour outside his apartment when he had raised the hood of his car. He said that his car was overheating and his car had a soft front tire. He claimed that he had entered the car with his neighbour to watch the gauge that indicates if the car is overheating. He said that the gauge is located near the steering column. Concerning the short visits by people to his apartment, Mr. Ndalo explained that because he works hard on construction sites, he would not allow his friends to spend much time in the weekday as he needed his rest for the next day. He further claimed that people who came and went over short visits to his apartment were Isabelle Roy’s friends. Lastly, he mentioned that he always locked the entrance but that Isabelle Roy did not. He stated that because Isabelle Roy drank, she was afraid of falling down the stairs and that she kept the door to the main entrance unlocked.

ANALYSIS

[31] To establish the guilt of the accused on a charge of possession of cannabis marijuana for the purpose of trafficking and to establish the guilt of the accused on a charge of cocaine for the purpose for trafficking, the Crown must prove the following essential elements beyond a reasonable doubt:

(i) that the accused was in possession of cocaine and cannabis marijuana;

(ii) that the accused knew that the substance he was in possession of was cocaine and cannabis marijuana; and

(iii) that the accused had possession of both cocaine and cannabis marijuana for the purpose of trafficking.

[32] Credibility is central to this trial. I am aware that it is not simply a credibility contest between Mr. Ndalo and the police officers, but that the Crown bears the burden to satisfy me beyond a reasonable doubt of Mr. Ndalo’s guilt. I must assess the whole of the evidence before determining whether I have a reasonable doubt about Mr. Ndalo’s guilt. It is not sufficient to determine whom I believe – the police officers or Mr. Ndalo.

[33] In assessing the evidence in this case, I am mindful of the test for determining credibility set out in the Supreme Court of Canada’s decision of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.). If I believe Mr. Ndalo’s evidence, I must acquit him. If I do not believe Mr. Ndalo’s evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Ndalo’s evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Ndalo’s evidence, I must be convinced beyond a reasonable doubt on the basis of all of the evidence I do accept that Mr. Ndalo is guilty. If I am unable to decide whom to believe, I must acquit Mr. Ndalo. I accept, in some circumstances, the absence of evidence can give rise to a reasonable doubt. As Cory J. stated in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.) art para. 36, a reasonable doubt “is logically connected to the evidence of absence of evidence”.

[34] In assessing the evidence of the witness, I do not give the police officers’ testimony any more weight than the testimony of Mr. Ndalo simply because they are police officers. I must consider, among other things, the plausibility of each witness’ evidence, the inconsistencies within a witness’ evidence, and the way in which the witness’ evidence fits with the other evidence given.

[35] In the case at bar, Mr. Ndalo admitted that all the cannabis marijuana found in his apartment was his except for 2.2 grams of it. The remaining issue is whether he had knowledge and control of the crack cocaine; if he had control of both the crack cocaine and the cannabis marijuana, was it for the purpose of trafficking and was the money found in his apartment derived from the proceeds of crime?

THEORY OF THE CROWN

[36] The Crown relied on the circumstances yielded by surveillance, ‑ twelve short meetings of one-half hour or less in five days as indicia of trafficking in drugs. That, together with the 378.3 grams of marijuana and 7 grams of crack cocaine found in Mr. Ndalo’s apartment, translates to proof beyond a reasonable doubt that Mr. Ndalo is guilty as charged.

[37] Whether the accused had knowledge of the presence of cocaine and marijuana in his apartment is absolutely central to the determination of the charge now before the Court. To establish possession, it is essential that the Crown prove knowledge beyond a reasonable doubt. In cases of simple possession, knowledge, intent to possess and control are all essential elements: see R. v. Kocsis (2001), 2001 CanLII 3593 (ON CA), 157 C.C.C. (3d) 564 (Ont. C.A.). It follows that knowledge must be an essential element of possession for the purpose of trafficking. Each piece of evidence – whether direct or circumstantial ‑ going to the issue of knowledge and control need not be established to the reasonable doubt standard. But ultimately, the Court must be satisfied on the evidence it chooses to accept and rely upon, that knowledge and control have been established beyond a reasonable doubt.

[38] Knowledge may be established by direct or circumstantial evidence, or a combination of both: R. v. Pham, 2005 CanLII 44671 (ON CA), [2005], 77 O.R. (3d) 401. In this case, the Crown relies on both direct and circumstantial evidence.

[39] The direct evidence consists of the drugs found in Mr. Ndalo’s apartment. Mr. Ndalo was the person who had leased the apartment and the drugs were found in his bedroom. Thus, the Crown argued that the accused had knowledge and possession of the drugs. The surveillance revealed that Mr. Ndalo’s activities were consistent with drug trafficking because of 12 short meetings by visitors to Mr. Ndalo’s apartment that lasted one half hour or less during the five days when surveillance took place. The visitors came when Mr. Ndalo was home. On October 15, 2010, Mr. Ndalo was not home and no one came to the apartment during the officer’s two hour surveillance.

[40] The investigators did not testify that they had found women’s clothing in Mr. Ndalo’s apartment. Crown counsel argued that because Mr. Ndalo paid the bigger portion of the rent, then he was in control of the apartment. I agree that Mr. Ndalo had control of the apartment but I cannot ignore that he was sharing his apartment with an exotic dancer addicted to cocaine. Originally, Isabelle Roy was charged and she had an outstanding warrant against her. She was in breach of Court Conditions and she had to appear at a show cause hearing to be released. Mr. Ndalo was not known to police and had no criminal record.

[41] I am concerned that Isabelle Roy was not placed under a subpoena to testify. She was present in that apartment and knew what was going on. As described by Sergeant Pilon during the trial, she fits the description of a crack cocaine addict, as thin and rough looking. Sergeant Pilon testified that long use of crack cocaine leaves telltale physical signs on a person’s body. I am left wondering who was doing what in that bedroom.

[42] The quantity of crack cocaine, one to two grams, was small and not likely to be a quantity for trafficking but for personal use. The other 5.2 grams were found in a shoe box in a bedroom where Isabelle Roy lived as well. Sergeant Pilon testified that the 7 grams of cocaine would supply a heavy user for two days’ consumption. I agree with defence counsel that the small quantity of cocaine cannot be upgraded to a trafficking quantity.

[43] Next, I find that the lack of packaging material for three quarters of one pound of marijuana is significant. I am told marijuana is sold in baggies and baggies have to be used if a person is trafficking. Customers would not leave Mr. Ndalo’s apartment holding marijuana in their hands. Sergeant Pilon’s evidence that Mr. Ndalo is possibly a “middler” is not compelling as the Crown’s theory all along was that Mr. Ndalo was a small time dealer.

[44] Defence counsel argued that not putting in the debt list found in Mr. Ndalo’s apartment degrades this police investigation. Evidence was heard that it was found in Mr. Ndalo’s apartment. Sergeant Pilon had to replace Detective Foley for this trial, due to a conflict in court dates. Sergeant Pilon testified that Detective Foley had mentioned that list in his report. No expert witness was called to determine if the list was a debt list. Sergeant Pilon stated that it was significant as it helped a trafficker keep track of his customer base and how much drugs he had out on the street. However, Crown counsel advised the Court in mid-trial that the list was not a debt list and would not be produced. I agree that this event downgrades the police investigation. Sergeant Pilon had to backtrack and say that the debt list was not after all that significant.

[45] There was no attempt made to obtain fingerprints on the torn plastic bag that contained cocaine or from the computer desk drawer. However, when there is evidence that two people shared the bedroom in question, and no one can see through the walls, the investigation cannot leave any stones unturned.

[46] I do not accept all of Mr. Ndalo’s evidence. I am entitled, as we tell juries, to accept all of his evidence, part of it or none at all. I find that Mr. Ndalo testified in a forthright manner without hesitating. At times he did not answer the question but generally his testimony, which gave an account of his activities and those of Isabelle Roy, was plausible. His evidence as a long time user of marijuana is believable over Sargeant Pilon’s evidence as to whether or not smoking marijuana could make you hungry and lethargic, and whether the drug is best kept in a freezer or on a shelf. Whether he is wrong or right in these attributes, one cannot point to a lack of credibility. As Sargeant Pilon stated, drug use physically affects people in different ways and after using marijuana for so long, Mr. Ndalo should know how to store it best.

[47] The fact that rolling paper was not found in the apartment is not helpful. The officers who searched the apartment testified that the apartment was incredibly messy and I agree with defence counsel that it could mean that there was no rolling paper or that the rolling paper was not found. The messy apartment description fits in with a typical lifestyle of a construction worker having an open relationship with an exotic dancer.

[48] I am not criticizing the police officers involved in this case, who did their work as best they could. One officer stated wrongly, in my opinion, that he was 50 meters away when he was observing the comings and goings in front of Mr. Ndalo’s apartment. At that distance, he would have had to use binoculars for his observations. I noted that some of the officers involved in the 2010 investigation had two years or less in drug detection experience. Surveillance is difficult work and I believe their evidence. However, it is a concern that the surveillance evidence was interpreted in one way only, as after October 7, 2010 they knew that more than one person occupied the apartment at 1184 Gladstone.

[49] My decision is based on the fact that Isabelle Roy, a cocaine addict, shared Mr. Ndalo’s bedroom was charged and released and on the other shortcomings of the Crown’s evidence. In this case the absence of evidence, as stated in R. v. Lifchus, gave rise also to my reasonable doubt.

[50] I am not convinced beyond a reasonable doubt based on all the evidence, that I accept Mr. Ndalo to be guilty of the offences charged. Even in combination, the direct and circumstantial evidence relevant to the issue of knowledge falls well short, in my view, of establishing the requisite knowledge to the standard of proof beyond a reasonable doubt.

[51] In the result, I am left in a state of reasonable doubt about whether the accused possessed the crack cocaine found in his apartment for the purpose of trafficking and I also have a reasonable doubt that the accused had possession of the marijuana for the purposes of trafficking, as I believe that the marijuana he had was for his own personal use.

[52] As I acquit the accused on all charges, I am mindful that the Crown has asserted that I might still find the accused guilty of the lesser and included offence of possession of marijuana on the basis that the accused admitted that the marijuana found in his apartment, except for 2.2 grams, was his. Possession is an included offense and I find Mr. Ndalo guilty of possessing the marijuana found in his apartment that he admitted belonged to him.

Lalonde J.

Released: November 1, 2012

COURT FILE NO.: 10-G8643

DATE: November 1, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

Hawi Ndalo

Defendant

REASONS FOR JUDGMENT

LALONDE J.

Released: November 1, 2012