COURT FILE NO.: CR12500008520000

DATE: 20130712

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Michael Wilson for the Crown

• and -

AKEEM RAYMOND BAILEY

Ariel Herscovitch for Akeem Bailey

HEARD: June 18, 19, 20, 21, and 25, 2013.

REASONS FOR JUDGMENT

Corrick J.

INTRODUCTION

[ 1 ] Akeem Bailey is charged with eleven offences related to possession of marijuana for the purpose of trafficking, possession of proceeds of crime, possession and unsafe storage of a loaded prohibited firearm, and possession and unsafe storage of ammunition. The charges arose from the arrest of Mr. Bailey, and the execution of a search warrant at 1674 Albion Road, Unit #101 on February 19, 2012.

[ 2 ] Mr. Bailey was jointly charged with Audrianna Ivy. At the outset of the trial, both defendants brought a Charter application, following which I ruled that the evidence seized by the police was inadmissible against Ms. Ivy, and admissible against Mr. Bailey, pursuant to s. 24(2) of the Charter. The Crown offered no other evidence against Ms. Ivy, and the charges against her were dismissed. Mr. Bailey’s trial then proceeded before me.

[ 3 ] At the conclusion of the trial, Mr. Bailey conceded that the Crown had proven the charges related to his possession of the marijuana for the purpose of trafficking beyond a reasonable doubt. In my view, this was an appropriate concession to make, and I find Mr. Bailey guilty of counts #1 and 11.

[ 4 ] Although not expressly addressed by Mr. Herscovitch, given Mr. Bailey’s concession that he possessed the marijuana for the purpose of trafficking, Officer Canepa’s evidence that the denomination of the currency found in Mr. Bailey’s possession was consistent with drug trafficking, and the absence of any other explanation for the source of the money, the only rational inference I can draw from the evidence is that the $1,010.00 seized from Mr. Bailey were the proceeds of drug trafficking. I am satisfied beyond a reasonable doubt that he was in possession of the proceeds of crime. I therefore find Mr. Bailey guilty of count #2.

[ 5 ] Also at the conclusion of the trial, Mr. Wilson, Crown counsel, conceded that he had not proven the offences related to Mr. Bailey’s possession and storage of ammunition beyond a reasonable doubt. This too, was an appropriate concession, and I therefore find Mr. Bailey not guilty of counts #10 and 13.

[ 6 ] The remaining issue to be determined is whether Mr. Bailey possessed a loaded 9mm Ruger semi-automatic handgun that was discovered in a hall closet during the execution of a search warrant at 1674 Albion Road, Unit #101 on February 19, 2012.

FACTS

[ 7 ] The facts are generally not in dispute. The inferences to be drawn from the facts are at issue.

[ 8 ] On February 19, 2012, police obtained a search warrant for 1674 Albion Road, Unit #101. Police believed that Mr. Bailey resided at that address and was in possession of marijuana and a loaded firearm. They set up surveillance on the residence and made the following observations:

1. At 12:16 p.m., Mr. Bailey left the house, opened the door to the attached garage, and entered a green Honda that was parked there. He drove to the area of another unit in the same complex, and stopped. A male got into the passenger seat of the car for a few seconds. The male left the car, and Mr. Bailey drove out of the complex.

2. Mr. Bailey drove to 65 Jamestown Crescent and parked in the parking lot of that complex.

3. At 1:20 p.m., Mr. Bailey drove back to 1674 Albion Road, Unit #101, and parked in the driveway. He and another male got out of the car, unloaded groceries, and went into the residence.

4. At 3:15 p.m., a second male (male #2) arrived at the residence by taxi. He entered the residence. Between 3:19 and 3:22 p.m., Mr. Bailey and male #2 stood outside the residence smoking, and then re-entered the residence.

5. Surveillance was discontinued at 3:45 p.m. and recommenced at 7:17 p.m., at which time Mr. Bailey left the residence and got into the green Honda, which was parked in the driveway with the engine running. He drove from the complex. Officers lost sight of him.

6. At 8:21 p.m., a car stopped in the driveway of the residence. A male got out of the car and knocked on the door of the residence. He did not go in. He returned to his car, and made a call on his cell phone. He then returned to the door of the residence, which was opened by a female.

7. At 9:06 p.m., officers located Mr. Bailey, still driving the green Honda. He returned to the residence, left the car running in the driveway and went into the residence. At 9:19 p.m., he drove away from the residence.

[ 9 ] At approximately 10:11 p.m. that night, Mr. Bailey was arrested while he was driving. A pat down search of Mr. Bailey revealed $1,010.00, two small plastic bags marked with numerous green dollar signs each containing less than one gram of marijuana, and another bag containing a larger amount of marijuana. Mr. Bailey had a black sock tied in a loop in the center of his pants through the first two belt loops. He also had two sets of keys, both of which included a key that opened the deadbolt lock of the front door of 1674 Albion Road, Unit #101.

[ 10 ] At 11:40 p.m. on the same night, the search warrant was executed at 1674 Albion Road, Unit #101. Audrianna Ivy and two children, Akeila Bailey, aged 3, and Jaquan Hurd, aged 6, were present in the residence at the time of the search. Akeila Bailey is Mr. Bailey’s daughter.

[ 11 ] The police searched the entire house including the garage. They found the following items:

1. In a closet in the main entrance hallway, a 9mm Ruger firearm loaded with 11 rounds of 9mm Luger ammunition. A round of ammunition was in the chamber, and the safety was in the “off” position.

2. In the same closet, a green bulletproof vest on a hanger under a jacket.

3. In a cupboard in the kitchen on the main floor, a case containing a firearm cleaning kit.

4. On a table in the basement, a resumé in the name of Akeem Bailey. It listed his address as 164 Jamestown. The last entry on the resumé was in 2009.

5. On a desk in a computer room located on the main floor of the residence, a knotted piece of a grey plastic bag containing 2.82 grams of marijuana, a digital scale, a small Ziploc bag containing numerous empty small clear plastic bags marked with numerous green dollar signs, a blue plastic bag that contained an Ontario G1 driver’s licence in the name of Akeem Bailey, an application for an Ontario driver’s licence in Mr. Bailey’s name, and two small clear sandwich bags containing .66 grams of marijuana and 16.87 grams of marijuana. Mr. Bailey`s address was listed as 11 Bergamont Road, Unit 519 on the temporary licence and the application.

6. On the floor, next to the desk, inside a Dell laptop computer bag, a large Ziploc bag containing four small clear bags, each of which contained less than 30 grams of marijuana, and a large bag containing six smaller clear bags, each of which contained less than 30 grams of marijuana.

7. In a dresser drawer in the master bedroom on the top floor, an Ontario driver’s licence in the name of Audrianna Ivy, a birth certificate in the name of Audrianna Ivy, and birth certificates in the names of Akeila Bailey and Jaquan Hurd.

[ 12 ] The residence is a narrow multi-level townhouse. Audrianna Ivy is the tenant listed in a lease agreement with Toronto Community Housing Corporation. The front door is on the ground level. A hallway from the front door leads to a set of stairs (eight in total), which lead up to a living room. To the left of the base of the staircase is a doorway with a set of stairs leading down to the basement. At the top of that staircase is the hall closet where the firearm was found. From the living room, another short set of stairs leads to a computer room where the marijuana and drug paraphernalia were found. Through the computer room is the kitchen where the firearm cleaning kit was located in a cupboard.

Discovery of the Firearm

[ 13 ] Officer Storey discovered the firearm on the top shelf of the hall closet between two reusable shopping bags. When he pushed one of the bags to the side, he saw the butt end of the firearm. The firearm was ready to fire. It was loaded with a magazine containing ten rounds of ammunition. One round of ammunition was in the chamber, and the safety was not on.

[ 14 ] Also in the closet, on a hanger, was a bulletproof vest hanging under a jacket. Although Officer Storey testified that it was hanging under an extra-large sized mans jacket, a close examination of the jacket reveals that it is a womans jacket, given its size and the fact that the buttonholes are on the right side.

[ 15 ] Also in the closet were an umbrella, mens, womens and childrens coats, jackets and shoes, and a childrens car seat.

Other Items Found

[ 16 ] Officer Amour located a firearm cleaning kit on the floor of a cupboard in the kitchen. The cupboard also contained a broom, dustpan, duster, plastic bags and Christmas giftwrap.

[ 17 ] Officer Balint testified that he photographed a man`s flip flop sandal that was discovered on the living room floor.

[ 18 ] Officer Smith searched the basement. He found bags that contained mens and womens clothing, as well as Mr. Bailey`s resumé.

The Black Sock

[ 19 ] Officer Scott Ferguson gave opinion evidence regarding the characteristics of an armed person and the manner in which firearms are secured. Mr. Herscovitch did not object to Officer Ferguson’s qualifications or to him giving opinion evidence.

[ 20 ] He testified that armed individuals secure their firearms in locations where they are accessible to the individual’s dominant hand. Criminals do not use commercially available holsters to secure their firearms. They use other means, including socks. The firearm would be put inside the sock, which would then be tied to the belt loops of the armed person’s pants where it would be easily accessible. The sock found around Mr. Bailey’s pants was not tied in a manner that would permit it to be used as a holster, according to Officer Ferguson. However, the sock could be used to tighten the waistband of the pants thereby creating a more secure place on the waistband to carry a firearm. Officer Ferguson testified that he had never seen a sock used in this fashion; nor had he heard of a case in which a sock had been used in this fashion to secure a firearm.

Evidence of Officer Canepa

[ 21 ] Officer Canepa gave opinion evidence related to trafficking in narcotics, and the use of weapons in the drug trade. His qualifications to do so were not disputed by Mr. Herscovitch. He testified that, in his opinion, Mr. Bailey was using 1674 Albion Road, Unit #101 as a “stash house;” a safe place to store his large supply of marijuana while he was outside of the residence conducting drug transactions. This opinion was based on the surveillance evidence showing Mr. Bailey leaving and returning to the residence on four occasions in nine hours, the large amount of marijuana found in the residence along with a digital scale, pre-packaged small plastic bags each containing a gram of marijuana, and numerous 1" x 1" clear plastic bags marked with green dollar signs, which were the same bags that were found on Mr. Bailey when he was arrested.

[ 22 ] He also testified that, in his experience, it is common for drug traffickers to use weapons to protect themselves, their narcotics and their money. In his opinion, the presence of a firearm in a fire-ready state in the hall closet, near the front door of 1674 Albion Road, Unit #101, together with a bulletproof vest indicates that the drug trafficker is worried about something and wants the firearm easily accessible and ready to go. Officer Canepa testified that in the last five years, small firearms have become the weapon of choice for drug dealers because they are easy to carry and to conceal. It was less common, in Officer Canepa’s experience, for a person who sells only marijuana to have a gun. He has seen it in five to ten cases out of the thousands of drug investigations he has done.

POSITIONS OF THE PARTIES

[ 23 ] Mr. Wilson’s theory is that Mr. Bailey used 1674 Albion Road, Unit #101 as a stash house, that he and Ms. Ivy were engaged in a joint enterprise selling marijuana, and that the firearm found in the hall closet was a tool of the drug trade used to protect Mr. Bailey, Ms. Ivy, and their marijuana. He argues that Mr. Bailey was either in constructive possession of the firearm or jointly in possession of it with Ms. Ivy. He further argues that the only reasonable inference to be drawn from the totality of the circumstantial evidence is that Mr. Bailey was in possession of the firearm, and is therefore guilty.

[ 24 ] Mr. Herscovitch submits that the circumstantial evidence falls short of proving beyond a reasonable doubt that Mr. Bailey was in constructive or joint possession of the firearm. His argument is twofold. First, that the evidence does not support the reasonable inference that Mr. Bailey had knowledge or control of the firearm. Alternatively, if I find that Mr. Bailey’s possession of the firearm is a reasonable inference, it is not the only reasonable inference, and therefore Mr. Bailey’s possession has not been proven beyond a reasonable doubt.

ANALYSIS

[ 25 ] Proof of possession, constructive or joint, requires the Crown to prove beyond a reasonable doubt that Mr. Bailey had both knowledge and control of the firearm: R. v. Terrence (1983), 4 C.C.C. (3d) 193 (S.C.C.).

[ 26 ] Mr. Wilson does not have to prove Mr. Bailey’s possession by direct evidence. It can be proven by circumstantial evidence. There is no direct evidence that Mr. Bailey had knowledge or control of the firearm in the hall closet. Mr. Wilson submits that they can be inferred from all of the surrounding circumstances. He relies on the following circumstances:

1. Mr. Bailey was trafficking in marijuana and using 1674 Albion Road, Unit #101 as a safe place to keep his marijuana and drug dealing equipment.

2. Mr. Bailey was observed to come and go from the residence on four occasions throughout the day on February 19, 2012.

3. Mr. Bailey’s daughter lives in the residence.

4. Mr. Bailey’s resumé was found in the basement of the residence.

5. At the time of his arrest, Mr. Bailey had two keys to the deadbolt lock of the front door of the residence, enabling him to access the residence at will.

6. Police found men’s clothing and shoes in the basement and hall closet of the residence. A man’s flip flop sandal was found in the living room.

7. The marijuana was in plain view on the top of a table in a room directly off the kitchen, where children’s toys were also located. Ms. Ivy is the registered tenant of the residence. These facts support the inference, in Mr. Wilson’s submission, that Ms. Ivy was either actively involved in the marijuana trafficking or permitting it.

8. The bulletproof vest was found hanging under a man’s jacket in the same closet where the firearm was found. Mr. Wilson asks the court to infer that the jacket was Mr. Bailey’s.

9. The firearm was located near the front door, where it was easily accessible to an adult. It was not wrapped in anything. It was fully loaded and ready to fire. It was in the residence where drugs worth between $2,000 and $8,000 were stored. Officer Canepa’s evidence was that a firearm stored in this manner was stored to protect a drug trafficker’s most valuable asset – his supply of marijuana. According to Officer Canepa, drugs and firearms go together.

10. The sock tied around Mr. Bailey’s belt loops was a means to tighten the front of his pants to provide a secure place to carry the firearm in his waistband where it would be accessible to his dominant hand.

11. There is no evidence that any other male is connected to the residence.

[ 27 ] To prove that Mr. Bailey is guilty, the Crown must satisfy the court that the only rational inference that can be drawn from the circumstantial evidence is that Mr. Bailey had knowledge and control of the firearm: R. v. Griffin; R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289. The Crown is not required to negative every possible conjecture consistent with Mr. Bailey’s innocence: R. v. Beason, [2008] O.J. No. 2027 (S.C.J.). The circumstantial evidence must be evaluated as a whole rather than as individual pieces to determine whether the Crown has satisfied the burden: R. v. Turner, 2012 ONCA 570.

[ 28 ] A review of the many cases to which counsel have referred amply demonstrates that possession cases are fact-driven inquiries, as Justice Hill described them in R. v. Anderson-Wilson, 2010 ONSC 489. Each case turns on its unique facts. In this case, I am not persuaded that the only rational inference that can be drawn from the circumstantial evidence is that Mr. Bailey had knowledge and control of the firearm for the following reasons:

1. Mr. Bailey was neither a registered tenant nor resident of 1674 Albion Road, Unit #101. Other than what appeared to be a dated resumé, the items in the house known to be connected to Mr. Bailey were located in a single location within the residence – the computer room on the main floor. His temporary driver’s licence and application for a driver’s licence, supply of marijuana, and drug trafficking equipment were found in plain view on or near a desk in that room. The firearm, which was not in plain view, was located in a closet on the ground floor of the residence.

2. There is no evidence that the flip flop sandal found in the living room, or the men’s clothing or shoes found in the closet or basement were connected to Mr. Bailey. There is no evidence that any men’s clothing was found in the master bedroom.

3. The bulletproof vest, found in the hall closet below the shelf where the firearm was located, was not hanging under a man’s jacket as Officer Storey testified, but under a woman’s jacket.

4. I am unable to conclude that Mr. Bailey was the only male (or other person for that matter) who had a connection to or access to the residence. The residence was under surveillance for approximately twelve hours on a single day. This limited period of time is insufficient to conclude that Mr. Bailey was the only male with a connection to the residence. Three other men entered the residence throughout that period. One man, who arrived with Mr. Bailey at 1:20 p.m., was not seen leaving by the time surveillance had been discontinued at 3:45 p.m. A second man arrived at 3:15 p.m., entered the residence without knocking, and was not seen to leave before 3:45 p.m. A third man arrived at 8:21 p.m., when Mr. Bailey was not present. He did not gain entry to the residence until after he made a telephone call, and a female opened the door for him. There is no evidence about when that man left. Mr. Wilson also relies on the fact that Mr. Bailey’s daughter lived in the residence to bolster his submission that Mr. Bailey was the only male connected to the residence. However a child, other than Mr. Bailey’s, also lived in the residence. There is no evidence about that child’s father’s connection to the residence.

5. The fact that Mr. Bailey sold marijuana or stored drugs in the residence does not inevitably lead to the conclusion that he possessed the firearm. As Officer Canepa testified, not every drug trafficker possesses a firearm. It is a matter of the trafficker’s personal preference. It is also relevant to note that of the thousands of cases that Officer Canepa has investigated over his 39-year career involving the sale, production, or possession of only marijuana, only a very small number (between five and ten) involved the accused person possessing a firearm.

6. The sock around Mr. Bailey’s pants was not worn in a manner other than as a belt. As Officer Ferguson testified, anything, including a belt, that tightens the waistband of pants, can assist a person to secure a firearm in the waist area. This does not assist me in determining whether Mr. Bailey had knowledge and control of a firearm in 1674 Albion Road, Unit #101. Gunshot residue testing performed on the sock found around Mr. Bailey’s belt loops did not reveal the presence of gunshot residue.

7. There was no forensic evidence connecting Mr. Bailey to the firearm. Fingerprint analysis performed on the firearm did not yield any results suitable for comparison. Testing did not reveal the presence of DNA on the firearm.

[ 29 ] Although I have analyzed the circumstances individually, I have considered them as a whole. They are suspicious circumstances. However, when viewed as a whole, they do not satisfy me beyond a reasonable doubt that the only reasonable inference to be drawn from them is that Mr. Bailey was in possession of the firearm.

CONCLUSION

[ 30 ] In conclusion I find Mr. Bailey guilty of counts #1, 2 and 11, which are the two counts of possession of marijuana for the purpose of trafficking, and one count of possession of proceeds of crime. I find Mr. Bailey not guilty of counts #4, 6, 8, 9, 10, 12, and 13.

[ 31 ] I wish to once again thank counsel for their able and helpful submissions.

K. Corrick J.

Released: July 12, 2013