ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-90000334
DATE: 2014/06/25

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Javid Ahmad

Accused

David Morlog, for the Crown

Jeff Hershberg, for the Accused

HEARD: June 2 to 5, 2014

REASONS FOR JUDGMENT

B.A. ALLEN J.: (Orally)

THE CHARGES

[1] Before me on consent of Crown counsel the defence re-elected trial by judge alone.

[2] The defendant, Javid Ahmad, was arrested on April 19, 2012 and charged on one count of possession of cocaine for the purpose of trafficking in the amounts of 4.5 grams and 98.3 grams and was further charged on two counts of possession of proceeds of crime in the amounts of $140 (CDN) and $6,970 (CDN).

[3] On the drug charge, the defence concedes that if Mr. Ahmad is found to be in possession that he was in possession of the drugs for the purpose of trafficking and concedes that the substance seized was cocaine. The only issue to be determined is whether Mr. Ahmad was in possession, that is, whether he had knowledge and control of the drugs. There is also no issue as to continuity of the drugs after they were seized

THE EVIDENCE

The Crown’s Evidence

[4] The Crown called the evidence of four members of the Toronto Police Service drug squad team who were involved in the drug buy operation on April 19, 2012. D.C. Michael Limsiaco acted as the undercover officer who bought the drugs, Det. Christopher Scherk, as the officer in charge, and Det. Rodney Benson, as the team leader. D.C. Chad Giesche and D.C. Kamal Rahim were the arresting officers. The officers testified using their memo notes to refresh their memories. There was little variance in the times they gave for the various events as they each obtained the times from the notes of the central note taker, D.C. Wallace.

[5] D.C. Limsiaco provided details and times of his activities on April 19, 2012 that led up to the drug buy and that occurred during and after the transaction. Det. Benson undertook close cover foot surveillance for D.C. Limsicao. He drove D.C. Limsiaco to and from the scene of the buy. He offered evidence from his observations in close proximity to D.C. Limsiaco and the male from whom he purchased the cocaine. Det. Scherk released and recorded the buy money and prepared the control sheet and testified to some limited observations he made of D.C. Limsiaco and the male.

[6] D.C. Limsiaco received information from D.C. Wallace on April 19, 2012 that a person called ‘Romeo’ would provide drugs for sale. D.C. Wallace provided a cellphone number for Romeo which D.C. Limsiaco called at 3:36 p.m. Romeo responded and D.C. Limsiaco asked if he could purchase “two soft” which meant two grams of powder cocaine. D.C. Limsiaco asked for the price and Romeo said he would call him back. Romeo called back at 3:51 p.m., confirmed the amount of drugs requested, and asked D.C. Limsiaco to meet him at Yorkdale Shopping Mall. The amount agreed to was $140.

[7] D.C. Limsiaco and the other officers on the team attended a briefing at the drug squad office from about 4:25 p.m. to 4:30 p.m. which was presided over by Det. Christopher Scherk. The operational plan for the drug buy was discussed. Det. Scherk issued $160 in marked drug buy money to D.C. Limsiaco. They both signed and initialled a control sheet containing a photocopy of each bill displaying the serial numbers on each bill.

[8] Det. Rod Benson and D.C. Limsiaco arrived at Yorkdale at about 5:05 p.m. While en route, D.C. Limsiaco received a text from the cellphone number he had called to set up the drug deal. Romeo told D.C. Limsiaco to meet him at the tables near the theatre.

[9] D.C. Limsiaco testified that from the bottom of the escalator leading to the theatre, he called Romeo’s cellphone number. He testified he then saw a Middle Eastern looking male walking toward him, about 5’8”, 160 lbs, wearing a black leather coat, black jeans, with bushy eyebrows, short dark hair and black rimmed glasses. Det. Benson was standing in the doorway of one of the stores about 45 feet from where D.C. Limsiaco was meeting the male. He testified he observed D.C. Limsiaco texting on his cellphone. He made a direct observation of the male and provided a similar description of him.

[10] D.C. Limsiaco provided details of his first sighting of the male. He testified that when he called the male on the cellphone he observed him answer the phone with his left hand as he walked towards D.C. Limsiaco. They then met face-to-face near the glass doors at the entrance of the mall near the foot of the escalator.

[11] D.C. Limsiaco and Det. Benson gave details of the initial encounter by D.C. Limsiaco with the male and of the drug transaction. D.C. Limsiaco testified the male reached into his right front pocket at which point D.C. Limsiaco suggested they go outside of the mall to do the deal. Det. Benson described the meeting of the officer and the male as seen from his position in the entrance of the store. Det. Benson observed D.C. Limsiaco give the pre-arranged “going to get” signal as D.C. Limsiaco moved toward the doors with the male.

[12] Det. Benson said that when he saw them about to walk out of the mall he walked out ahead of them and was in very close proximity at that time. Det. Benson walked out and went west and D.C. Limsiaco and the male walked out together and went to the east.

[13] D.C. Rahim was on foot surveillance and positioned inside a store just inside the entrance to the mall and did not see D.C. Limsiaco or the male when they met. He received a description of the male over the radio from Det. Benson, information that a drug transaction had occurred, and an order that the male was to be arrested. He did not see the male until he went outside of the mall to arrest him.

[14] D.C. Giesche was also on foot surveillance walking through the mall. Then he was stationed inside a bookstore near the entrance to the mall near the foot of the escalators leading up to the theatre. He testified he saw D.C. Limsiaco standing at the foot of the escalator but he did not see the male until the male and D.C. Limsiaco were walking outside. When he heard from Det. Benson a description of the male and that a drug transaction was about to occur, he moved to the front entrance and left the mall about five or six steps behind D.C. Limsiaco and the male.

[15] D.C. Limsiaco testified that outside on the walkway in front of the mall, the male put into his left hand two small baggies of cocaine. With his right hand D.C. Limsiaco gave the male $140. Det. Benson testified that D.C. Limsiaco and the male stood together on the walkway a little west of the entrance. He said however his view of their interaction was impeded by pedestrian traffic passing by and by his desire not to be conspicuous by looking directly at them. He would only look at them from a peripheral view so he relied on officers in closer vicinity to make more direct observations.

[16] D.C. Giesche testified he was five or six metres from D.C. Limsiaco and the male during the drug buy. He testified that at 5:21 p.m. he witnessed the hand-to-hand transaction between the male and D.C. Limsiaco. D.C. Giesche indicated no pedestrian traffic obstructed his view. He stated he saw D.C. Limiasco hand something to the male and the male hand something to D.C. Limsiaco but he did not observe which hands they used in the exchange.

[17] The officers who were outside when the transaction took place and during the arrest gave similar descriptions of the location of the transaction and the position of D.C. Limsiaco and the male during the transaction.

[18] The officers testified that after the buy was made, at 5:26 p.m. D.C. Limsiaco gave the pre-arranged “take down” sign and walked north to the parking lot. Det. Benson followed D.C. Limsiaco back to the vehicle they had arrived in. Det. Benson testified, with D.C. Limsiaco in the vehicle, he drove close to the arrest scene, parked and got out of the vehicle where he observed D.C. Giesche and D.C. Rahim arresting Mr. Ahmad.

[19] D.C. Rahim arrived just ahead of D.C. Giesche to arrest the male at the scene of the transaction. D.C. Rahim testified he approached the male, announced he was Toronto police, grabbed him, took him to the ground, told him he was under arrest for trafficking cocaine and cuffed him. He brought him to his feet and gave him the rights to counsel. D.C. Giesche arrived to assist with cuffing the male.

[20] Both D.C. Rahim and D.C. Giesche testified the male they arrested met the description Det. Benson had given them. He was wearing the clothes as described. The male who was arrested was identified by all officers as the accused before the court, Javid Ahmad. Both officers attested to the fact that Mr. Ahmad was carrying a black Jansport backpack to the back over both shoulders. D.C. Giesche testified he had to take off the handcuffs to remove the backpack and then re-cuff him.

[21] D.C. Rahim searched his person and D.C. Giesche searched the backpack.

[22] D.C. Rahim retrieved from his left pants pocket a beige envelope with the word ‘Romeo’ written on it containing a large quantity of cash and one small clear plastic ziploc baggie with powder cocaine. In a rear pants pocket he found an I-pod. In his left front pants pocket he retrieved keys and a black LG cellphone. In the right front pants pocket he found a loose quantity of cash in bills which was determined to be the $140 buy money. In the left exterior pocket of his jacket D.C. Rahim found a small clear plastic baggie containing powder cocaine.

[23] D.C. Giesche began his search at the scene. Back at 32 Division, he found in the backpack a large quantity of cocaine in a ziploc baggie, a Blackberry cellphone, three envelopes with cash inside and male gym clothing. There he seized 46 dime baggies of cocaine. D.C. Giesche was tasked with processing the drug exhibits.

[24] D.C. Rahim testified that they seized in cash: one envelope with a bundle of 100 $20 bills; another envelope with a bundle of 100 $20 bills; and a third envelope with a bundle of 11 $100 bills and a bundle of 24 $50 bills. The total cash seized was $6,970. The $140 buy money which matched the bills on the control sheet was also seized.

[25] D.C. Limsiaco and D.C. Giesche testified about proving that the cellphone in Mr. Ahmad’s possession in his left front pant pocket was the one used to set up the drug deal. Back at 32 Division at 8:55 p.m., D.C. Giesche brought the LG cellphone to D.C. Limsiaco and D.C. Limsiaco called 647-207-9522, the number used to set up the drug transaction. The cellphone rang. This confirmed the phone connected Mr. Ahmad to the sale of the drugs to D.C. Limsiaco.

The Defence’s Evidence

[26] The defence called Mr. Ahmad. His account of the incident is completely at odds with the accounts of the four officers.

[27] Mr. Ahmad admitted to being at Yorkdale around 5:00 p.m. on April 19, 2012. He testified he had made plans with a friend to meet there and eat and take in a movie. He said they were going to eat at Moxey’s and between 6:45 p.m. and 7:00 p.m. would go to the movie “The Cabin in the Woods”. He called the friend he was going to meet “Mikey”. When asked Mikey’s surname, he said he did not know Mikey’s surname. He said he did not know where Mikey resided except to say he lived somewhere in the vicinity of his own neighbourhood. He had never been to Mikey’s home. Mr. Ahmad testified he did not recall how he and Mikey made contact that day – whether by cellphone, e-mail or Facebook, or how Mikey got to the mall.

[28] Mr. Ahmad testified that shortly after he met Mikey at the foot of the elevator leading to the theatre, Mikey told him he had to meet someone. Mr. Ahmad stated Mikey got a phone call and then Mikey walked outside with a man, but Mr. Ahmad said he was not paying much attention to them because he was busy on his cellphone.

[29] Mr. Ahmad testified that while he was busy on his cellphone he heard someone shout “Toronto Police!” and he saw four men walk up to him. He identified them as Officer Scherk, Officer Giesche and Officer Rahim. He testified he did not know who the fourth officer was but assumed it was D.C. Wallace, who he did not see testify in court.

[30] Mr. Ahmad testified the police asked him, “Who’s the guy?” to which Mr. Ahmad replied “What guy?” The police responded to him “The guy you were with.” On Mr. Ahmad’s evidence the police did not tell him why they were asking about the guy who was with him. But Mr. Ahmad immediately said, “I don’t know.” They asked him again who the guy was and Mr. Ahmad repeated that he did not know.

[31] According to Mr. Ahmad, the police then took him to the ground and asked him if he “wanted to take care of the drugs” and Mr. Ahmad replied that he did not know what was going on. Mr. Ahmad stated that the police then told him he was under arrest for trafficking cocaine and took him outside and patted him down.

[32] Mr. Ahmad testified he did not notice or recall the clothing Mikey was wearing that day. But he did recall Mikey was wearing a backpack. Mr. Ahmad testified that he was wearing his glasses and a black jacket and shoes. He said he was carrying an I-pod, a cellphone and keys. He denied carrying a backpack, having cocaine or a large amount of cash and he denied having an LG cellphone in his possession. He testified his Blackberry was not in the backpack.

[33] Mr. Ahmad testified that D.C. Wallace and D.C. Rahim on separate occasions approached him at 32 Division and told him “it’s your last chance to tell us who the guy is.” Mr. Ahmad accused D.C. Rahim of threatening if he did not give the name, how would he like it if he strip searched his mother. D.C. Rahim denied the allegation.

[34] Mr. Ahmad testified he refused to give Mikey’s name because snitching and giving names to the police is not condoned in the neighbourhood he grew up in. He did not really give details about the neighbourhood he grew up in except to say it was at York Mills and the Don Valley Parkway. He said although Mikey does not live in his neighbourhood, Mikey knew where he lived. He said he feared for his and his family’s safety if he told the police the name. Mr. Ahmad added to that reason that he did not give the name because he did not think this matter would go this far.

[35] When asked on cross-examination whether he had seen Mikey since his arrest, Mr. Ahmad testified that after he was released from house arrest, he ran into Mikey at a bus stop. Mr. Ahmad testified he told Mikey what had happened to him and asked Mikey if he would come to the trial and testify. Mr. Ahmad said Mikey refused.

ANALYSIS

[36] Mr. Ahmad faces a charge of possession of cocaine for the purpose of trafficking and two counts of possession of proceeds of crime. As noted earlier, on the drug charge there is no issue as to whether the drugs were for the purpose of trafficking if possession is proven and no issue that the substance seized was cocaine. The Crown has to prove beyond a reasonable doubt that Mr. Ahmad was in possession of the drugs and money procured from criminal activity.

[37] The burden is on the Crown to prove Mr. Ahmad’s guilt beyond a reasonable doubt. The Supreme Court of Canada has defined what reasonable is and how that standard is to be applied to the facts of a case. R. v. Lifchus provides guidance:

• a reasonable doubt is not a doubt based upon sympathy or prejudice;

• rather, it is based upon reason and common sense;

• it is logically connected to the evidence or absence of evidence;

• it does not involve proof to an absolute certainty;

• it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

• more is required than proof that the accused is probably guilty

[R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.)]

[38] It is the Crown’s theory that the only reasonable and logical conclusion that can be drawn from the facts, taken as a whole, is that Mr. Ahmad sold cocaine to D.C. Limsiaco and when he was searched he had a large quantity of cocaine and a large sum of money on his person and in his backpack and also had the LG cellphone that made the drug deal call in his pants pocket.

[39] The Supreme Court offers a practical approach to evaluate the evidence when a defence is called:

• If the court believes the defendant’s evidence that he did not commit the offence charged, the court must find the defendant not guilty.

• Even if the court does not believe the defendant’s evidence, if it leaves the court with a reasonable doubt about his guilt of the offence charged, the court must find him not guilty of that offence.

• Even if the defendant’s evidence does not leave the court with a reasonable doubt of his guilt of the offence, the court may convict him only if the rest of the evidence the court does accept proves his guilt beyond a reasonable doubt

[R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.)]

[40] I found Mr. Ahmad’s evidence was not believable. I found his testimony to be no more than a blunt denial that lacked any substance that could lend it credibility.

[41] Mr. Ahmad is facing very serious charges yet he testified he did not think this matter would go so far. This is one of the reasons he did not feel compelled to give the name of the other person he says is guilty of the offences. Mr. Ahmad appeared as an intelligent person. It does not stand to reason he could imagine this matter would go no further. He said he was counting on the mall surveillance to exculpate him. In a mall he said he only attended a few times, is it likely he could be confident there was functioning video surveillance cameras located where he said he was detained by the police?

[42] Mr. Ahmad’s further excuse for not giving the name was that it could be dangerous for him and his family to give Mikey’s name. By itself that explanation might be plausible. It is not an unknown fact that the world of high quantity narcotics deals is a dangerous world where talking to the police could be perilous to the life of an informer and their family. However, when that excuse is placed in the context of the overall shortcomings in Mr. Ahmad’s evidence, I find that explanation does not assist him.

[43] The fact Mr. Ahmad does not know Mikey’s surname is somewhat problematic since they had been friends for about a year. I am willing to accept, as Mr. Ahmad testified, that people in some communities do not use their full names and often use nicknames, their real name being sometimes unknown to some of their associates. However, when I consider that Mr. Ahmad, without knowing why the police asked who the other guy was, immediately lied and said he does not know him, just adds to questions about his credibility. Mr. Ahmad testified he did not know Mikey came to Yorkdale Mall to do a drug deal. Although Mr. Ahmad explained that the police were aggressive when they asked the question about who the other guy is, I still find it questionable why Mr. Ahmad did not ask what the problem was, why the police wanted to know who the other guy was. The police could have wanted the other guy’s name for a