ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000268

DATE: 20130131

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEIFOR DENHUGH REID

Defendant

Luke Schwalm, for the Crown

Stacey Alexander Taraniuk, for the Defendant

HEARD: January 21, 22, 23, 25, 28, 30, 2013

SPIES J. (Orally)

[1] Keifor Reid is charged with various firearm and drug offences following his arrest on July 21, 2010. I will not review all of the evidence surrounding the events leading to that arrest as that evidence will be set out in my written Charter ruling on the applications that I heard at the outset of the trial. As I have advised counsel those reasons will be completed shortly. I will however, review the evidence that is particularly relevant to the charges.

[2] The central issues are as follows:

1. Has the Crown proven beyond a reasonable doubt that Mr. Reid was in possession of the loaded restricted firearm found in the Nissan Altima that he was driving on July 21, 2010? To prove the defendant guilty on any of the firearms counts, the Crown must prove beyond a reasonable doubt that he knew the firearm was where it was found by D.C. Reynolds. If he did there is no issue that he would have had control over the firearm as he had access to the vehicle and was driving it alone for a few hours prior to his arrest.

2. Has the Crown proven beyond a reasonable doubt that the marijuana and crack cocaine found on Mr. Reid’s person was in his possession for the purpose of trafficking?

[3] There is no doubt that Mr. Reid was in simple possession of two dime bags; one containing 0.82 and the other 0.22 grams of marijuana, which were found in Mr. Reid’s front jean pocket. In addition, three “pinky” sized pieces of crack cocaine with a combined weight of 1.67 grams was found in the ankle area of one of Mr. Reid’s socks.

[4] Dealing first with the drug offences, there is no dispute that the evidence the Crown relies upon in support of the charges of possession of marihuana and possession of cocaine for the purpose of trafficking is all circumstantial. The Crown did not call any expert evidence with respect to the drugs found save for certificates of analysis confirming the nature of the drugs in question. I therefore have no evidence as to the value of the drugs, how they are typically packaged for sale, what if any paraphernalia is used to consume these drugs, what if any paraphernalia is used to sell these drugs or the significance of other items found such as the $123.30 found on Mr. Reid’s person or the two cell phones found in the vehicle Mr. Reid was driving. Furthermore, although the officers called, and in particular Det. Heitzner, had considerable experience in drug investigations, they were not asked these questions. Although as a judge who has heard many drug trials, I have some knowledge of these facts, they are not sufficiently entrenched in my view to be matters I can take judicial notice of. That said, common sense inferences can and will be made where possible.

[5] The Crown relies on the following circumstantial evidence in support of its position that Mr. Reid had the marihuana and crack cocaine in his possession for the purpose of trafficking and that those charges have been made out:

1. The drugs found in Mr. Reid’s possession were divided up and ready for sale into the two dime bags of marijuana and the three pieces of crack cocaine. However as I have already stated the Crown did not call any expert evidence as to how these drugs are typically sold. Even if I assume that marijuana is typically sold in dime bags and that crack cocaine is typically sold in small chunks, and that these drugs were therefore in a state where they were ready for sale, this is a neutral fact. These drugs would be in the same packaging and condition if they had been purchased by Mr. Reid for his own personal use. Although the fact that the quantities of drugs are relatively small does not rule out the possibility that Mr. Reid had one or both of these drugs in his possession for the purpose of trafficking, the quantities are not so large that I could conclude, certainly not without expert evidence, that the quantities are consistent with trafficking and not personal use.

2. Mr. Schwalm submitted that the fact the firearm was found in the vehicle corroborates the possession of these drugs for the purpose of trafficking as guns and drugs typically go hand in hand. This is a matter courts have often found, particularly in sentencing hearings and I believe I can take judicial notice of this, at least as a general proposition. In my experience it is often, although not always, the case. Mr. Taraniuk argues that in this case the firearm and the drugs were not found together, like for example the facts in R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.). However the drugs were on Mr. Reid’s person and on the evidence of D.C. Reynolds the firearm was loaded and easily accessible by the driver of the vehicle so in my view this is not a valid distinction. However, although I do not know the value of the drugs, the quantity was not large and the amount of money on Mr. Reid’s person was only $123. Even if Mr. Reid did throw some drugs to the driver of the pickup truck, it is impossible to know which drug or the quantity save that it must have been small since it was not observed by Det. Heitzner. Given the relatively small quantity of drugs and the fact that Mr. Reid was not carrying a large quantity of cash which might be consistent with trafficking, he would not have necessarily had the usual reason for carrying a firearm if he was trafficking in drugs, namely to protect himself, his drugs and his proceeds, from a robbery.

3. I have considered the cases relied upon by the Crown. The McIntosh case is distinguishable. In that case Hill J. found that the only reasonable inference was that Mr. McIntosh owned and concealed the firearm and drugs or that his passenger introduced those items into the vehicle with his consent. In that case the person who had rented the vehicle in question and loaned it to Mr. McIntosh testified and denied knowledge of the firearm and drugs which Hill J. accepted. Justice Hill did find the proximity of the firearm to the crack cocaine suggested that the handgun was meant to protect a drug dealer from loss of the drug and/or the proceeds of its sale but he found Mr. McIntosh was a drug dealer and that the quantity of cocaine; 50 grams of crack cocaine, was clearly for the purpose of trafficking. In addition $4,000 was found in the vehicle. There was considerably more at stake for Mr. McIntosh if he were robbed. As well the unreported decision of R. v. Tinglin of Justice Backhouse of this court is distinguishable. She did hear expert evidence on the relationship between handgun and drug trafficking and why they “go together”. The accused in that case would have made a profit of as much as almost $30,000 if the seized drugs were sold. As I have already said, the reasons given by the expert in that case, namely to protect the investment and the dealer does not apply with the same force here. The same applies to the case of R. v. Noorali, 2010 ONSC 1188, [2010] O.J. No. 2787 (S.C.J.) where the accused’s “investment” included 40 grams of cocaine and more than $12,000 in proceeds. I find therefore, that the presence of both a firearm and the drugs is a factor but that it is not particularly compelling in all of the circumstances of this case.

4. Two cell phones were found in the vehicle, one a LG and the other a Blackberry. No cell phone was found on Mr. Reid’s person. I have no further evidence about them. Mr. Schwalm submitted one could have been for personal use and the other for the drug trade. Mr. Schwalm did not lead any evidence about the use of cell phones in the drug trade although if it had been proven that they both were owned by Mr. Reid, that might be suspicious. However I do not know who owned the phones. There is no evidence of where in the vehicle these phones were found or whether they were on at the time of arrest or even operational. There is no evidence as to what numbers were saved in the phones or any other information stored on the phones. Although I agree with Mr. Schwalm that a cell phone is typically an item that someone keeps in their personal possession and uses frequently, and Mr. Reid had possession of the vehicle for a number of hours, neither of these phones were in a pocket of Mr. Reid’s clothing and in any event, it is reasonably possible that someone else owned one of the phones and left it in the car. There is simply not enough information to draw any reasonable inferences from the presence of two cell phones in the vehicle.

5. No paraphernalia for the use of drugs was found in the vehicle. Mr. Schwalm submits that that is odd since Mr. Reid was in the vehicle for several hours on the day in question. In fact he suggested that the police had witnessed Mr. Reid in the vehicle for some four hours except for one visit to a convenience store. In essence he argues that it makes no sense for Mr. Reid to have the drugs on his person for all this time for no purpose and so the purpose must have been to traffic. There are a number of difficulties with this submission. First of all, no evidence was led as to what paraphernalia would be used for the consumption of these drugs, although I accept that the drugs as found were not ready for immediate consumption. However, having considered all of the evidence with respect to the observations made by the officers as testified to or as set out in the Agreed Statement of Fact; given the surveillance report is not an exhibit on the trial, I cannot rule out the possibility that the officers missed Mr. Reid attending, for example, the Unity Crescent address just before his arrest, for the purpose of purchasing these drugs. I have no evidence that Mr. Reid was observed the entire time in the hours leading up to his arrest, only what was observed at different times. In any event even if Mr. Reid had purchased these drugs some time earlier and was keeping them on his person, and not consuming them, although Mr. Schwalm suggests that that would not be logical given that they are illegal drugs, given that the quantities were not large, I do not accept that this conduct would make no sense. That would be speculation in my view. It is just as likely, for example, that the drugs were on Mr. Reid’s person so that anyone he was living with would not find them in his residence. I therefore find the fact that Mr. Reid may have had possession of these drugs for almost five hours and not consumed any of them not to be material; it is a neutral factor.

6. There is no evidence of any paraphernalia for use in selling drugs found in the vehicle such as scales, but this is also a neutral factor as the drugs may have been ready for sale in their current state.

7. There is no dispute that Mr. Reid was not observed to do anything the police considered suspicious until after he drove in the Nissan Altima to the Plaza at 11:55 p.m. Mr. Schwalm suggests that the most important factor is the observations made by Det. Heitzner and his belief, as an experienced officer, that he had witnessed a drug transaction in the plaza located just north of the intersection of Steeles Avenue West and Dufferin Street (the “Plaza”). I have accepted, for the purpose of my Charter Ruling, that Det. Heitzner made the observations that he testified to. They are as follows:

• The stores in the Plaza were all closed and it was dark subject to artificial light.

• After Mr. Reid pulled into the parking lot of the Plaza, Det. Heitzner observed him park next to a white pick-up truck with a cab on back. Both vehicles were facing South Bound and apart now from Det. Heitzner’s vehicle were the only two vehicles in the parking lot. Det. Heitzner had driven his vehicle into the Plaza through a different entrance and was positioned about 30 meters south of Mr. Reid’s vehicle facing north; in other words facing Mr. Reid’s vehicle and the truck. He remained in his vehicle. There were no lights on the truck and Det. Heitzner could not see its licence plate or if anyone was in it or if the windows were down. The lights on Mr. Reid’s vehicle were also turned off.

• After one to two minutes, Det. Heitzner saw Mr. Reid get out of the driver's side door of his vehicle and walk to the front of the vehicle just past the driver's side door. He leaned over the hood of the vehicle and Det. Heitzner observed a throwing motion with Mr. Reid’s right arm toward the driver’s side of the truck. Det. Heitzner did not see any object that may have been thrown, nor if there was an object, did he see where it went. He did say any object would not have been large as if it was he would have been able to see it. He did not see anyone exit or enter the truck.

• At this point the lights on the car Mr. Reid was driving came back on and the vehicle moved slowly southbound through the parking lot as if Mr. Reid had only taken his foot off the brake. As it went past and cleared the truck, Det. Heitzner observed the truck headlights come on and it “squealed” out of the parking lot through the north entrance off Dufferin Street.

• Det. Heitzner did not make any further observations of the truck in terms of year or make and model as it turned in front of him save that it was an older model. He said that he could not see this because it was dark and that he could not observe the licence plate of the truck.

• Det. Heitzner did not attempt to have the truck stopped and so there is no information as to what if any relationship the occupant(s) of that vehicle had with Mr. Reid and what if anything he threw towards the truck.

• At 11:58 pm, Det. Heitzner ordered the Team to execute a high-risk takedown of Mr. Reid and arrest him for the possession of a firearm. As a result, as Mr. Reid’s vehicle was moving toward the exit on to Steeles Avenue West, Mr. Reid was surrounded by six undercover police vehicles and stopped at gun point by seven officers in plain clothes.

[6] For the purpose of my Charter Ruling, it was not necessary for me to consider what possible innocent explanations there might be for the conduct of Mr. Reid that Det. Heitzner observed. I concluded that Det. Heitzner had reasonable and probable grounds to believe that he had witnessed a drug transaction, notwithstanding there was no reciprocation, and on that basis lawfully arrested Mr. Reid. Although I could not do this for the purpose of my Charter Ruling, it is now permissible for me to consider the fact that what Det. Heitzner believed he observed is confirmed to the extent that drugs were found on Mr. Reid’s person. However, I must consider whether in all of the circumstances, the only reasonable inference to draw from the evidence of what Det. Heitzner observed and relied upon in deciding to arrest is that he observed a drug transaction.

[7] It is reasonable to infer from the evidence of Det. Heitzner that Mr. Reid parked his vehicle next to the truck in order to have some sort of interaction with the driver of the truck. Because the white pickup truck was not stopped by police and because a licence plate number was not obtained, there is no evidence at all as to any possible relationship between Mr. Reid and the driver of the truck. It could have been a first time meeting or two old friends meeting up. It is reasonable to infer that it was not as likely the latter as the parties did not get out of their cars and greet each other. Nevertheless, Det. Heitzner was not close enough to the two vehicles to observe whether or not Mr. Reid may have been having a conversation through open windows with the driver of the truck.

[8] Det. Heitzner did not see any item being thrown by Mr. Reid, only a motion consistent with a small object being thrown. The motion was in the direction of the driver’s side of the truck but he did not see where any object went, nor did he see any reciprocating motion suggesting anything was thrown back. I accept his evidence that if it was a large object he would have seen it. I have also accepted his evidence that he believed the item to be a small quantity of drugs.

[9] Det. Heitzner testified about his considerable experience with street level drug investigations. He said not all are by a “hand to hand” exchange of drugs and cash. He testified that sometimes the dealer will throw the drugs on the ground, spit them out of his mouth or throw them into a window. He believed Mr. Reid was throwing drugs into the truck in order to create distance from himself. He did not observe anything being thrown back but said that people are often fronted drugs without payment or owed drugs from a previous contact. Although I accept these explanations from the officer, he certainly did not suggest in his evidence that what he observed was in any way a typical drug transaction. He did not state that he had seen this type of conduct on many occasions before and certainly did not testify that throwing drugs in the manner observed or a lack of reciprocation of money for the drugs was common. His testimony was more to the fact that the lack of reciprocation and the lack of a hand to hand transaction did not mean to him it was not a drug transaction.

[10] Considering all of the evidence that I have referred to, and considering all of the reasonable inferences that in my view can be drawn from the evidence, I have concluded that although Det. Heitzner’s belief that what he observed was a drug transaction was reasonable, it is not the only reasonable inference to be drawn from the evidence. I find that another reasonable inference from the evidence is that Mr. Reid may have thrown some other small object to the driver of the truck. Although I am suspicious, considering all of the evidence, that Mr. Reid was throwing perhaps a piece of crack cocaine, I have concluded that that is not the only reasonable inference to be drawn from the evidence. The evidence does not rise to the level of establishing Mr. Reid’s guilt of possessing either marijuana or crack cocaine for the purpose of trafficking beyond a reasonable doubt.

[11] Turning to the firearm charges, there is no direct evidence that Mr. Reid knew of the loaded 38 calibre revolver firearm that was found by D.C. Reynolds hidden behind the interior ceiling dome light of the vehicle. He found it while he was seated in the passenger seat of the car and he noticed that the ceiling dome light appeared to have been tampered with. He was able to remove the light easily and then saw a black sock which contained the firearm. He saw this sock from the passenger side of the vehicle and admitted that because of its position it would not be seen from the driver’s side. He did not give evidence about how obvious it was that the light appeared to be tampered with or whether what he observed in that regard would have been visible from the driver’s side of the vehicle. D.C. Reynolds was also looking for drugs and a firearm and so would naturally be looking up at the dome light of the car and as he put it, areas accessible to the driver. Although it was a place accessible to the driver, the dome light is not an area of the vehicle that a driver would normally take notice of. Certainly it is not in the area a driver views in order to operate the vehicle. I find that it is quite possible that Mr. Reid made no observations of a tampered dome light as observed by D.C. Reynolds. I find the firearm was hidden. The mere fact that Mr. Reid spent a number of hours in this vehicle, even though the loaded firearm was easily accessible to the driver; in my view the location of the firearm is not relevant to a finding of knowledge. See R. v. Green, [1993] O.J. No. 1346 (Ont. C.A.) and R. v. Iturriaga, 1993 2517 (BC CA), [1993] B.C.J. No. 2901 (B.C. C.A.) at para. 9. Although the firearm was in a place easily accessible by the driver, and in particular to Mr. Reid when he was driving the car, given that the firearm was hidden, that fact is not enough to infer knowledge.

[12] Mr. Reid is not the owner of the Nissan Altima and I did not hear any evidence on the trial about the owner save that the ownership and insurance for the vehicle is in the name of Vilma Higgins. I have no evidence as to who she is, what her relationship is to Mr. Reid, nor any evidence from her as to whether or not other people had access to this vehicle or whether or not she has any criminal record that could suggest that she may be the one who may have been in possession of this firearm. It cannot be inferred that Mr. Reid is the only person who could have hidden the firearm in the car.

[13] Mr. Schwalm suggested that the firearm was very valuable and dangerous and that it is unlikely that anyone else would have left it in the vehicle particularly when Mr. Reid had care and control of the vehicle for over four hours just prior to his arrest. Mr. Taraniuk conceded a loaded firearm is dangerous but pointed out that there is no evidence as to its value. Clearly the firearm was dangerous, but whoever it belonged to may have chosen to store it hidden in this vehicle rather than in their residence or on their person. I find on these facts that the inference that the firearm belonged to Mr. Reid is not the only reasonable inference to be drawn.

[14] Mr. Schwalm relies on the fact that Mr. Reid was observed to be nervous by the officers following his arrest, but he fairly acknowledged that this is consistent with his arrest following a high risk takedown. He had been arrested after six cars had responded and four had boxed in his vehicle, a number of officers had approached his vehicle with guns drawn, he had been told he was under arrest for possession of a firearm and illicit drugs had been found on his person and he had been arrested for possession for the purpose of trafficking. In those circumstances, it would be surprising to me if Mr. Reid was not nervous.

[15] I come then to the evidence of the observations of D.C. Winter and D.C. Duncan. D.C. Winter testified that after he cautioned Mr. Reid he observed that he kept focusing his attention towards his vehicle and that he seemed to be very interested in the officers at his vehicle. In answer to a somewhat leading question from the Crown he said that he may have been looking back and forth at his vehicle while he was reading the rights to counsel to Mr. Reid and that this would have been when officers were searching the car. It is at this point D.C. Winter testified that Mr. Reid told him that the car was not his. He said Mr. Reid was seated at this point and he could not tell if his view of the vehicle was obstructed although he could see it.

[16] D.C. Duncan testified that Mr. Reid was on his knees facing south, when he noticed him looking towards the vehicle. He did not seem to be focused on him and D.C. Winter. D.C. Duncan did not believe the view of the vehicle was obstructed. He admitted that he did not know if Mr. Reid was specifically looking at the vehicle. Mr. Schwalm submitted that the only reason Mr. Reid would have been distracted to the point that he was by the search of the vehicle was because he knew there was a firearm hidden in the vehicle. The search did not find anything else that was illegal that he could have been worried about.

[17] In considering what reasonable inferences if any can be drawn from this evidence there are a number of difficulties. First of all, it is not clear at what point Mr. Reid was looking towards the vehicle given the discrepancy between the evidence of D.C. Winter and D.C. Duncan as to whether it was when he was kneeling or seated. However it is possible that he was doing so both while kneeling and seated. However, as D.C. Duncan fairly admitted it is not possible to be sure that the vehicle is what Mr. Reid was looking at. There were several officers in the area and all of their cars were still present and surrounding the vehicle. There would have been a lot of activity around the vehicle. In addition, the direction Mr. Reid is alleged to have been looking was the way he was facing, whether he was kneeling or seated and it was also in the direction of the gas station which was open. Even if I could conclude that Mr. Reid was looking in the direction of the vehicle, in my view, that does not necessarily suggest he knew about the firearm. Although that is certainly a possibility, as Mr. Taraniuk pointed out, the vehicle did not belong to him and he may simply have been concerned about what the police were doing to the car that he felt responsible for. Even assuming that the officer’s belief as to where Mr. Reid was looking is accurate, an inference that Mr. Reid was looking towards the vehicle because he was worried about the police finding the firearm is not the only reasonable inference that can be drawn from the evidence.

[18] The final point raised by Mr. Schwalm is that Mr. Reid attempted to distance himself from the vehicle when he made what he calls a spontaneous utterance to Officer Winter that the car was not his. He submitted that there was no reason for Mr. Reid to say this save to distance himself from the car. Whether he was the one who owned the gun and put it there or just knew that it was there, Mr. Schwalm submits that his statement suggests he knew the gun was in the car and he wanted to distance himself from that.

[19] The first issue with respect to this submission is that I do not have the full context in which the statement was made by Mr. Reid, nor can I assume I have his entire statement. D.C. Winter did not make his notes until the next day. As I advised counsel, in ruling that the statement was admissible, I considered the fact that Officer Winter had admitted having a conversation with Mr. Reid during the 20 minutes while he was in his custody. He made no notes of that conversation nor did he have any recollection of it. I accepted his evidence that he did not fail to hold off and begin to question Mr. Reid as suggested to him in cross-examination, but that does not rule out the possibility that a comment that he made prompted Mr. Reid to make this utterance. In fact D.C. Winter could not recall if he had asked Mr. Reid a question about the car that prompted this response and in cross-examination admitted that there was a conversation with Mr. Reid when Mr. Reid made the comment about the car. Without more information about the entire context of the discussion the officer had with Mr. Reid, it is difficult to say what to make of the utterance if anything.

[20] Even if I assume as submitted by Mr. Schwalm, that Mr. Reid spontaneously made the statement in order to distance himself from the car, what Mr. Reid said was true and given what was happening to him at the time, there may have well been other reasons for him making that true statement. Although it may well be as suggested by Mr. Schwalm that he said this to distance himself from the vehicle, I cannot find that that is the only reasonable inference to be drawn.

[21] I appreciate that all of the various factors relied upon by the Crown must not be dealt with in isolation, and I have considered cumulatively all of the circumstances surrounding not only the possession by Mr. Reid of the crack cocaine and marijuana but also the location of the firearm and the observations made by Det. Heitzner and officers Winter and Duncan. Although all of those circumstances put together make me suspicious that Mr. Reid was engaged in drug trafficking on the night in question, and that he knew that there was a firearm hidden in the vehicle, suspicion is not sufficient to ground convictions on any of these charges. I find that the Crown has not satisfied me beyond a reasonable doubt that the only reasonable inference to be drawn from the circumstantial evidence is that Mr. Reid was trafficking in drugs and or that he was in possession of the firearm.

[22] Mr. Reid would you please stand.

[23] For the reasons I have given I find you guilty of the included offence of possession of marijuana as charged in Count # 7 and the included offence of possession of cocaine as set out in Count # 8. I find you not guilty of Counts 1, 2, 3, 4, 5 and 6.

SPIES J.

Oral Judgment Released: January 31, 2013

Written Judgment Released: February 27, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000268

DATE: 20130131

HER MAJESTY THE QUEEN

– and –

KEIFOR DENHUGH REID

Defendant

REASONS FOR JUDGMENT

SPIES J.

Oral Judgment Released: January 31, 2013

Written Judgment Released: February 27, 2013