ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR/14/120000625/0000
DATE: 20141205

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

– and –

EBONY OSAWE
Applicant

Mr. J. Healy, for the Crown
Mr. D. Bayliss, for Mr. Osawe

HEARD: November 24, 25, 26 And December 2, 2014

M. Forestell J.

RULING ON APPLICATION FOR
DIRECTED VERDICT OF ACQUITTAL

Overview

[1] On September 29, 2010 Toronto police executed a search warrant at apartment 304, 11 Dunbloor Road. When the apartment was searched, a loaded restricted firearm and a significant amount of cocaine and marihuana were found. The applicant, Mr. Ebony Osawe, was arrested in the living room of the apartment that day. Ebony Osawe was not ordinarily resident in the apartment. The tenant of the apartment was Eric Osawe, Ebony Osawe’s brother. Eric Osawe was present in the apartment when the search warrant was executed. During Eric Osawe’s arrest in the bedroom of the apartment he was fatally shot.

[2] A loaded firearm was hidden in a couch cushion in the living room; a small bag of marihuana was found in the living room; a large bag of marihuana was found behind the oven drawer; crack cocaine and paraphernalia were found on the top shelf of a kitchen cupboard.

[3] Ebony Osawe was charged with four counts related to the possession of the firearm found in the couch cushion and with possession of cocaine for the purpose of trafficking and with possession of marihuana for the purpose of trafficking.

[4] Mr. Osawe elected trial by judge alone on these charges. His trial proceeded before me with evidence heard over the course of three days. The Crown’s case is complete and counsel for Mr. Osawe brings this application for a directed verdict of acquittal on all counts.

[5] Knowledge and a measure of control are required to prove possession at law.

[6] In this application, the applicant submits that there is no evidence capable of supporting the inference that Ebony Osawe had knowledge or control over any of the illegal items that were found. Alternatively, it is submitted that even if there is evidence capable of supporting an inference of knowledge, there is insufficient evidence to support an inference of control.

[7] Counsel for the Crown argues that the totality of the evidence is capable of supporting the inference of knowledge and control of all items. However, the Crown fairly concedes that his argument is less strong in relation to the items hidden in the kitchen of the apartment.

[8] For the reasons that follow I have concluded that the evidence cannot support an inference of knowledge in relation to any of the items with the exception of the small bag of marihuana in the living room. I further find that the evidence cannot support an inference of control over any of the illegal items found. As a result, I have concluded that a verdict of acquittal must be directed on all counts.

[9] In these reasons I will begin by reviewing the evidence and will then move to the legal principles and finally to my analysis and conclusions.

Evidence

[10] On September 29, 2010 the Toronto Police attended at Apartment 304, 11 Dunbloor Road to execute a search warrant. The target of the search warrant was Eric Osawe. It was believed by the police that Eric Osawe was the only resident of the apartment.

[11] It is an agreed fact that the accused Ebony Osawe was not ordinarily resident at the apartment. Ebony Osawe was present in the apartment when the police gained entry to the apartment to execute the warrant. He was arrested in the living room area of the apartment.

[12] Eric Osawe was in the bedroom when the police entered.

[13] The police found a firearm and magazine in the apartment. The firearm was in working order and was loaded. It was secreted in a slit that had been cut into a couch cushion. There was a zipped cover over the cushion. As I will discuss further below, Ebony Osawe was arrested in the vicinity of the couch.

[14] Marihuana and cocaine were located in the apartment. A bag with about 12 grams of marihuana was found in the living room; a bag with about 96 grams of marihuana was found behind the drawer below the oven in the kitchen; a bag containing about 13 grams of crack cocaine was found on the top shelf of a kitchen cabinet with a scale and dime bags.

[15] Three witnesses testified on the trial. P.C. Ronald Willers and P.C. Craig Ashman were the two Emergency Task Force (ETF) officers who first entered the apartment and who arrested Ebony Osawe. D.C. Andrew Judd was the Guns and Gangs Task Force officer who attended, about 8 hours after the entry by the ETF, to search the apartment. I will briefly review the evidence of each of these witnesses. In my review I will not set out the cross-examination directed at credibility and reliability because I am not to weigh credibility or assess reliability on this application and I have not done so.

[16] P.C. Ashman was the first person to enter the apartment after the ETF breached the door. The door was breached at 1:05 a.m. As the door was being breached P.C. Ashman yelled, “Police. Search warrant. Everybody inside get down on the ground.”

[17] When the door opened, P.C. Ashman looked into the apartment and saw Ebony Osawe in the living room. P.C. Ashman testified that he made eye contact with Ebony Osawe and maintained eye contact until he reached him seconds later. P.C. Ashman testified that he saw Mr. Osawe sitting on the left side of the couch (or the right side as you face the couch) in the living room.

[18] P.C. Ashman did not enter the apartment until after P.C. Willers deployed a distraction device. The distraction device produced a loud bang, a bright flash and smoke.

[19] P.C. Ashman testified that, although he did not enter the apartment, he continued to look into the apartment at Ebony Osawe and continued to maintain eye contact. He continued to repeat the commands, “Police. Search Warrant. Get on the Ground.” P.C. Ashman initially could not see Mr. Osawe’s hands and feet because of the kitchen counter. He could see his upper body and could see that he was not wearing a shirt.

[20] When P.C. Ashman entered the apartment after the device had been deployed, he went directly to the living room and to Mr. Osawe. P.C. Ashman testified that Mr. Osawe was not moving to the ground in compliance with P.C. Ashman’s direction. P.C. Ashman did not see Mr. Osawe move at all.

[21] Mr. Osawe was still sitting on the couch or may have just fallen off the couch when P.C. Ashman reached him. P.C. Ashman testified that he struggled with Mr. Osawe to get him off the couch and onto the ground. Mr. Osawe’s arms and legs were flailing. P.C. Ashman testified that Mr. Osawe’s conduct was not an attack or an assault, but that Mr. Osawe was ‘actively resisting’ going to the ground.

[22] Mr. Osawe slipped off the couch and onto the ground. P.C. Ashman testified that Mr. Osawe was trying to move back towards the couch after he was on the ground. P.C. Ashman also testified that they were in ‘tight quarters’ between the couch and the coffee table and were already at the couch. Mr. Osawe’s hand grabbed at the sofa.

[23] P.C. Ashman testified as to his interpretation of Mr. Osawe’s actions when he grabbed at the sofa. He testified that he believed that Mr. Osawe was trying to use the couch and/or the coffee table for leverage to stand up. He also testified that Mr. Osawe had his hands out to prevent himself from going down to the ground. He also testified that Mr. Osawe appeared to be trying to get away from him.

[24] P.C. Willer was behind P.C. Ashman and arrived at the couch to assist. Another officer, Payne, also arrived to assist in subduing Mr. Osawe. Mr. Osawe eventually stopped resisting and was placed in handcuffs.

[25] After Mr. Osawe was handcuffed, P.C. Ashman noticed a pair of scissors on the floor near the couch. He testified that after he saw the scissors he believed that Mr. Osawe might have been trying to get to the scissors when he was resisting and moving towards the sofa.

[26] At some point during the time that Mr. Osawe was being subdued in the living room, there was a gunshot from the bedroom and P.C. Ashman became aware that someone had been shot.

[27] P.C. Ronald Willers testified that he was the second officer to enter the apartment. He deployed the distraction device and entered behind P.C. Ashman.

[28] When he entered he saw Mr. Osawe in the living room. Mr. Osawe was not sitting or lying down. He appeared to be midway between sitting and lying on the ground. P.C. Willers testified that Mr. Osawe was actively resisting by trying to get up. P.C. Ashman was with Mr. Osawe, but P.C. Willers could not see what P.C. Ashman was doing.

[29] P.C. Willers commanded Mr. Osawe to put his hands on the back of his head. Mr. Osawe did not comply. P.C. Willers went to Mr. Osawe and used his foot to push Mr. Osawe to the ground. P.C. Willers then knelt on Mr. Osawe’s shoulders. Officer Payne arrived to assist and Mr. Osawe was handcuffed when another officer brought handcuffs.

[30] Both PC Willers and P.C. Ashman testified that as part of their duties in securing a residence for the execution of a search warrant, members of an ETF team would search the area for people who may be hiding or for other threats. They both testified that this would include flipping up the cushions on a couch and lifting or moving the couch. The couch was not in disarray when they entered and dealt with Mr. Osawe.

[31] Photographs taken when D.C. Judd entered the apartment at 9:20 a.m., about 8 hours later, show the right bottom cushion of the couch flipped up against the back of the couch. The back cushion on the right side is missing. The left bottom cushion has one raised corner and is slightly askew.

[32] P.C. Willer did not remember the coffee table being knocked over when he dealt with Mr. Osawe. P.C. Ashman testified that the coffee table could have been knocked over in the struggle with Mr. Osawe.

[33] Photographs taken after D.C. Judd entered the apartment show the coffee table overturned and items strewn on the floor near the overturned table. The table has lower shelves built into it.

[34] D.C. Andrew Judd testified that he was assigned the duty of searching the apartment later on September 29, 2014. He entered the apartment at about 9:20 a.m. He understood that the Special Investigations Unit and uniform officers had been in the apartment prior to his entry.

[35] When he entered the apartment D.C. Judd smelled a strong odour of fresh marihuana. He found a large bag of marihuana behind the drawer below the oven. The drawer had to be removed to find the marihuana.

[36] He then found a bag containing 2 chunks of crack cocaine, a digital scale and some empty dime bags on the top shelf of an open kitchen cabinet. On the same shelf was a letter addressed to Eric Osawe. D.C. Judd testified that it would be possible to see the crack cocaine if a person looked at the right angle from the right location in the kitchen with the cupboard door open.

[37] D.C. Judd then searched the living room. The couch cushions were in disarray and the coffee table was overturned as depicted in the photographs described above.

[38] D.C. Judd picked up the couch cushion on the left side of the couch. He unzipped the cover to look inside. He found nothing in that couch cushion. He then picked up the couch cushion on the right side and felt that it was heavier than the first cushion he had examined. He put the cushion down and pushed down on various parts of the surface of the cushion with his hands. He felt a hard object in the cushion. He then unzipped the cushion cover. There were loose feathers within the cover and caught in the zipper. He saw a cut or slit in the cushion between the top layer of down and the bottom layer of foam. Within the cut he found a loaded handgun.

[39] After finding the handgun, D.C. Judd continued searching and found a bag of marihuana near the coffee table that had been overturned. Also near the coffee table was a black wallet containing identification of Eric Osawe, a sim card, keys on a key ring (including a key to the apartment) and an envelope with figures written on it.

[40] The Zip lock bag with marihuana in the living room was the same as the Zip lock bag containing the marihuana in the kitchen.

[41] In addition to the admitted facts and the viva voce evidence, I received two expert reports ‑ one from a firearms expert and one from an expert on the distribution, pricing, packaging and paraphernalia related to cocaine and marihuana trafficking.

[42] With that summary of the evidence I will now turn to the applicable legal principles.

Legal Principles

[43] The test to be applied on a directed verdict application is the same as the test to be applied by a preliminary inquiry judge in deciding committal for trial. There must be some evidence of each essential element of the offence which, if believed, could lead a reasonable jury, properly instructed, to convict.[1]

[44] The whole of the evidence must be considered to determine whether there is sufficient evidence of each element. The sufficiency of the evidence is assessed with reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt.[2] In a purely circumstantial case, the Crown’s ultimate burden is to demonstrate that guilt is the only reasonable inference to be drawn from the totality of the evidence.[3]

[45] Each count in the indictment in this case alleges possession: of the firearm and of the cocaine and marihuana. Possession is defined in subsection 4(3) of the Criminal Code, R.S.C., 1985, c. C‑46, which states:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[46] The Crown alleges constructive or joint possession of the drugs and the Crown argues that there is evidence of actual, constructive or joint possession of the firearm.

[47] To establish possession in any of its legal forms the Crown must prove knowledge and control of the thing allegedly possessed. The Crown need not prove that the accused in fact exercised control over the thing but the Crown must prove that the accused had the ability to exercise control.[4]

[48] Knowledge and control may be made out by direct or circumstantial evidence. The evidence relied upon in this case is circumstantial.

[49] The proper approach on a directed verdict application in a case involving circumstantial evidence was articulated by McLachlin J. (as she then was) in dissent in R. v. Charemski and again by McLachlin C.J. writing for the Court in R. v. Arcuri. In Arcuri, at paragraph 23, Chief Justice McLachlin explained:

The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence - that is, those elements as to which the Crown has not advanced direct evidence - may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed.…The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing however is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[50] The process of drawing ‘reasonable inferences’ was discussed by T. Ducharme J. in R. v. Munoz who stated:

¶26 The first step in inference drawing is that the primary facts, i.e., the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation. …

¶28 The second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts. This possibility stems precisely from the fact that an inductive conclusion is not necessarily valid.

[51] The limited role of the trial judge on a directed verdict application was emphasized in R. v. Cinous.

[52] In determining this application therefore, I must determine what primary facts have been established and then I must determine whether the inferences advanced by the Crown of knowledge and control on the part of Ebony Osawe could reasonably and logically be drawn from those primary facts.

Analysis

Knowledge and Control of the Cocaine in the Kitchen

[53] Count 5 in the indictment charges Ebony Osawe with possession of cocaine for the purpose of trafficking. The issue on this application is whether there is sufficient evidence of possession of the cocaine that was admittedly found.

[54] The circumstantial evidence relied upon by the Crown to support the inference of knowledge and control of the cocaine in the kitchen cupboard is the following:

• The evidence of D.C. Judd that the cupboard door was open when he entered at 9:20 am;
• The evidence of D.C. Judd that the cocaine could possibly be seen by someone standing in the kitchen if that person stood at the right spot and looked up at the right angle;
• The presence of a scale and dime bags near the cocaine; and
• The presence of a scale on the dining table.

[55] As the Supreme Court held in Arcuri, I must consider the whole of the evidence in assessing the available inferences and this includes any exculpatory evidence. The further exculpatory evidence is the evidence that the apartment was rented by Eric Osawe; that Ebony Osawe was not ordinarily resident in the apartment; and the presence of a letter addressed to Eric Osawe near the cocaine, scale and bags.

[56] I find that the established primary facts set out above are not capable of supporting the inference of knowledge or control on the part of Ebony Osawe. There is no evidence to connect Ebony Osawe to the kitchen of the apartment, much less to the contents of the top shelf of a cupboard in the kitchen. The possibility that Ebony Osawe could have entered the kitchen and looked up at the top shelf of the cupboard at the right angle while standing in the right location and therefore could have seen the cocaine is not an available inference, but impermissible speculation.

[57] No reasonable jury, properly instructed, could conclude that Ebony Osawe had either knowledge or control of the cocaine.

[58] I therefore direct a verdict of not guilty on count 5 in the indictment: possession of cocaine for the purpose of trafficking.

Knowledge and Control of the Marihuana

[59] Count 6 in the indictment charges Ebony Osawe with possession of marihuana for the purpose of trafficking. Marihuana was found in two locations in the apartment: in the living room near the overturned coffee table and in the kitchen behind the oven drawer.

[60] The circumstantial evidence relied upon by the Crown to support the inference of knowledge and control of the marihuana in the living room and the kitchen is the following:

• The location of the marihuana on the floor of the living room near the overturned coffee table;
• The evidence that Ebony Osawe was in the living room when the police entered;
• The strong smell of marihuana in the apartment;
• The fact that both Zip lock bags containing marihuana were the same.

[61] The strong smell of marihuana is capable of supporting the inference that Ebony Osawe would have known that there was, or recently had been, fresh marihuana in his brother’s apartment.

[62] As noted above, there is no evidence that Ebony Osawe even entered the kitchen of his brother’s apartment. The marihuana in the kitchen was well hidden and there is no evidence capable of supporting the inference that Ebony Osawe knew about the marihuana in the kitchen.

[63] The location of the smaller bag of marihuana in the living room near the couch where Ebony Osawe was arrested, in conjunction with the evidence of the smell of marihuana is capable of supporting the inference that Ebony Osawe knew about the marihuana in the living room.

[64] However, I find that there is no evidence capable of supporting the inference that Ebony Osawe had any measure of control over the marihuana. The bag of marihuana in the living room was found near an overturned coffee table and near the wallet containing the identification of Eric Osawe. Ebony Osawe was not ordinarily resident in the apartment. There is no evidence that the marihuana was visible before the table was overturned and there is no evidence that Ebony Osawe had any connection to the marihuana beyond mere proximity to it.

[65] The Crown argues that the fact that the zip lock bags used for the marihuana behind the oven and the marihuana near the coffee table were the same is capable of supporting an inference that the same person controlled the marihuana in the kitchen and the marihuana in the living room. This is an available inference. However, it does not assist in drawing an inference that Ebony Osawe was a person with control over the marihuana.

[66] Having considered the evidence as a whole, I conclude that I must direct a verdict of acquittal on the count in the indictment charging Ebony Osawe with possession of marihuana for the purpose of trafficking.

[67] A reasonable jury, properly instructed could not conclude that Ebony Osawe had control over the marihuana.

[68] I therefore direct a verdict of not guilty on count 6: possession of marihuana for the purpose of trafficking.

Knowledge and Control of the Gun

[69] Counts 1 to 4 in the indictment charge Ebony Osawe with four offences related to the possession of the handgun found in the couch cushion in the living room of the apartment.

[70] The circumstantial evidence relied upon by the Crown to support the inference that Ebony Osawe had knowledge and control of the gun is the following:

• The testimony of P.C. Ashman that Ebony Osawe was sitting on the right cushion of the couch when the police entered the apartment;
• The evidence of P.C. Ashman that Mr. Osawe did not follow his commands to move to the ground;
• The evidence of P.C. Ashman that Mr. Osawe made eye contact with P.C. Ashman;
• The evidence of P.C. Ashman that Mr. Osawe flailed his arms and legs and resisted being put to the ground;
• The evidence of P.C. Ashman that Mr. Osawe put a hand on the couch cushion and a hand on the coffee table as P.C. Ashman was pushing him to the ground;
• The evidence of P.C. Ashman and P.C. Willer that Mr. Osawe appeared to be trying to push himself up using the couch and the table;
• The evidence of P.C. Ashman that when Mr. Osawe reached for the couch and pushed himself up, Mr. Osawe seemed to either be trying to get away from him or to be trying to get back to the couch or to be trying to reach for the scissors on the floor or to be trying to resist being put to the ground;
• The evidence of P.C. Willers that Mr. Osawe actively resisted being put to the ground and tried to get up;
• The evidence that the gun was located in the right hand cushion by D.C. Judd;
• The evidence that D.C. Judd felt that the cushion containing the gun was heavier than the other cushion;
• The evidence that D.C. Judd could feel a hard object in the cushion when he pressed down on the cushion with his hands before unzipping the cushion cover and locating the gun within the cut in the cushion;
• The evidence of D.C. Judd that there were feathers stuck in the zipper of the couch cushion and a few feathers on the carpet;
• The evidence contained in the expert report that guns are often possessed by drug dealers; and
• The presence of a substantial amount of crack cocaine and marihuana in the kitchen.

[71] In addition to the evidence set out above, the applicant points to the following:

• The agreed fact that Ebony Osawe was not ordinarily resident in the apartment;
• The presence of identification belonging to Eric Osawe in the living room;
• The absence of any evidence as to the placement of the cushion prior to the entry of the police in conjunction with the evidence that the ETF routinely moves couches and cushions to secure a residence;
• The evidence that the marihuana in the kitchen was hidden and the cocaine was not easily visible;
• The evidence that a letter addressed to Eric Osawe was located near the cocaine in the kitchen; and
• The tenancy agreement naming Eric Osawe as the tenant.

[72] The primary facts that are established by direct evidence are: that the gun was secreted in the cut in the cushion and beneath a zipped cover; that the precise placement of the cushion is unknown; that Ebony Osawe was sitting on one of the couch cushions; that Ebony Osawe failed to follow the direction of the police and resisted being taken to the ground; that Ebony Osawe placed his hand on a couch cushion and on the coffee table and pushed himself up as the police tried to push him down.

[73] The Crown argues that I should find as a primary fact that Mr. Osawe was sitting on the cushion that contained the gun and that I should infer that he could feel the gun within the cushion and therefore had knowledge of the gun. The primary fact that Mr. Osawe was sitting on the cushion that contained the gun is not established.

[74] The Crown also argues that I should find as a primary fact that when Mr. Osawe’s hand reached towards the couch, he was trying to get back to the couch. This was one of several interpretations offered by P.C. Ashman as to the purpose of Mr. Osawe’s actions.

[75] The Crown argues that I should find that because there were drugs in the apartment consistent with trafficking there is an available inference that the presence of a gun was more likely and therefore an inference of knowledge and control on the part of the occupants of the apartment is available.

[76] Having considered the whole of the evidence, I find that the inferences that Ebony Osawe had knowledge of or control over the gun in the cushion are not capable of being drawn. The gun was hidden. Mere proximity to the hidden gun could not be enough to support an inference of knowledge or control.

[77] As a result, I find that a directed verdict of acquittal should also be granted with respect to the firearms counts in the indictment.

M. Forestell J.

Released: December 5, 2014