Court File and Parties

COURT FILE NO.: CR-14-6920 DATE: 20160609 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ABDALLAH MOHAMED Applicant/Defendant

Counsel: Kellie Hutchinson, for the Crown Christian Angelini, for the Defendant

HEARD: April 28, 2016

Ruling Re: Application for Certiorari

MCKELVEY J.:

Introduction

[1] The defendant Abdallah Mohamed is charged with two counts of possession of cocaine for the purpose of trafficking. The charges arise out of the execution of a search warrant at 45 Charlton Street West, Apartment 403, in Hamilton on September 21, 2014. At the time the search warrant was executed, the applicant together with two other individuals, Gerome Hines and Ryan Edwards were found in the apartment. Also found in the apartment on top of a bar in the living room was a bag described as a satchel. The top of this bag was closed, but unzipped. There was a narrow opening between the upper and lower zipper which permitted a very limited view into the top of the bag. This could only be seen from a certain angle. Inside the satchel were two loaded handguns and significant quantities of powdered cocaine and crack cocaine. The cocaine was not visible unless the bag was fully opened.

[2] On August 27, 2015, following a preliminary inquiry the applicant was committed for trial on the two drug offences. The defendant has now brought this application to quash the order of committal. The central issue on this application is whether there was sufficient evidence to justify his committal on the two charges.

The Applicable Legal Principles

[3] The question for a preliminary inquiry judge is whether there is evidence upon which a reasonable and properly instructed jury could return a verdict of guilty. See United States of America v. Sheppard (1977), 1976 8 (SCC), 30 CCC (2nd) 424 (SCC). Thus, a preliminary inquiry judge is required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[4] Where there is no direct evidence on one of the essential elements of the offence the preliminary hearing judge is required to engage in a limited weighing of the circumstantial evidence. This principle was established by the Supreme Court in R. v. Charenski, 1998 819 (SCC), [1998] 1 SCR 679. In that case the Supreme Court noted that the question becomes more complicated where the Crown has not led direct evidence as to every element of the offence. The question then becomes for those elements where there is no direct evidence, what may be reasonably be inferred from the circumstantial evidence. In Charenski the court notes that this 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”.

[5] The court goes on to note in Charenski,

The judge must therefore weigh the evidence in 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 could 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. [emphasis in original].

[6] It is also clear that the jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge is very limited. It occurs only where a court finds that the preliminary inquiry judge has acted in excess of his or her statutory jurisdiction or has acted in breach of the principles of natural justice. See R. v. Turner, 2012 ONCA 570.

[7] A preliminary inquiry judge will commit jurisdictional error if he or she commits an accused based on inferences that cannot reasonably be drawn from the evidence. In that situation there would be an absence of evidence on an essential element of the offence. See R. v. Munoz, 2006 3269 (ON SC), [2006] OJ No. 446.

The Position of the Parties

[8] The applicant takes issue with the decision of the preliminary inquiry judge who concluded there was sufficient evidence adduced at the preliminary inquiry which could allow a jury to find that the accused was in possession of the cocaine found in the satchel at the time it was seized in the apartment. The applicant argues that the preliminary inquiry judge inferred that he was in possession of the drugs from three primary facts:

• The applicant’s presence at the time of the search;
• The location of the satchel;
• The observation by a witness, Ms. Gunn, that the applicant was a drug dealer.

[9] It is submitted by the applicant that these facts, whether in combination or isolation, were insufficient to bridge the inferential gap needed to establish knowledge and control by the applicant.

[10] The Crown argues that the facts when taken as a whole clearly support the inference that the applicant had both knowledge and control of the cocaine in the apartment at the time of the search.

The Decision of the Preliminary Inquiry Judge

[11] In his decision the preliminary inquiry judge set out the legal principles he was required to follow as follows:

Since R. v. Sheppard, 1976 8 (SCC), [1977] 2 SCR 1067, an accused at a preliminary hearing will be committed for trial if there is any evidence of the charge upon which a reasonable jury properly instructed could convict, when sufficient evidence means evidence required to sustain a verdict of guilty beyond a reasonable doubt. In other words, “sufficient” refers to the “goal or threshold of proof”. See R. v. Charenski, 1998 819 (SCC), [1998] 1 SCR 679.

When a case is one involving circumstantial evidence, the preliminary hearing justice must engage in a limited weighing exercise of the evidence. The justice must weigh the evidence “in assessing whether it is reasonably capable of supporting the inference that the Crown asked the jury to draw”, see R. v. Arcury, [2001] SCC 54. In that assessment, the preliminary hearing justice must consider the evidence as a whole, see R. v. Turner, [2012] ONCA 570.

In this regard I caution myself against impermissible speculation, that is where a proposed inference cannot be reasonably and logically drawn from established facts, as Ducharme, J. put it, “the courts have repeatedly cautioned against confusing the reasonable inference with mere speculation. Where an inferential gap exists, it can be properly overcome by evidence”. Rational explication is required and speculative imagination is impermissible, see R. v. Munoz, 2006 3269 (ON SC), [2006] 86 OR (3rd) 134.

Possession under section 4 (3) of the Criminal Code may be actual or constructive. The case before me on the contested counts is alleged to be constructive possession, which requires knowledge and control. There is no evidence of impugned items found on the person of either Mr. Edwards or Mohamed. In cases of constructive possession it is control over an area and not mere responsibility, which is crucial for determining possession, see R. v. Bertucci, [2002] Carswell Ont 3344 (C.A.). When the contraband is hidden, mere presence near the room containing the item is of little to no value. It is not a permitted inference that an accused had knowledge or control of the thing, see R. v. Turner, [2012] ONCA 4088.

[12] It is apparent that the preliminary inquiry judge correctly set out the legal principles applicable to his consideration of the evidence on the charges of possession against the applicant.

[13] With respect to his application of the principles the preliminary inquiry judge set out his analysis as follows:

The evidence heard at this preliminary hearing established that Messrs. Mohamed and Edwards were in apartment 403 when the police arrived and found the drugs and guns in the satchel. The satchel was unzipped and sitting on a bar area within the living room area of the unit. It was out in the open and not hidden.

Ms. Gunn gave evidence of her observations of Mr. Hines, Mr. Mohamed, and Mr. Edwards. Mohamed and Edwards were observed by her to be involved in the illicit drug trade. Mr. Edwards was seen by her to carry a handgun. Accordingly, considering all of the evidence, there is some evidence from which a jury can infer that both Mr. Edwards and Mohamed both had knowledge and control of the satchel with the guns and drugs. Both Mr. Mohamed and Edwards will be committed for trial on counts one and two on the CDSA information.

Evidence of Ms. Gunn

[14] Liana Gunn was called as a witness at the preliminary inquiry. Her evidence was referenced by the preliminary inquiry judge in his analysis and decision to commit the applicant for trial. The relevant portion of Ms. Gunn’s evidence against the applicant is as follows:

Q: Do you know anyone by the name of Elijah? A: Yes Q: And who is Elijah to you? A: Nobody really, to me. I just know him from going to Scarborough, and he is one of “Shiest’s” friends or associates or whatever you wanna call it. That’s how I met him, and that’s the only place I seen him. Q: And do you know, when you say one of “Shiest’s” associates, do you know what he did with “Shiest”? A: Ya. He did what everybody else did. He would get drugs from him and run them for him, and I guess they had some sort of friendship. Q: And when you say run them for him, what do you mean by that? A: Like, sell them for him, or sell them for himself to make money, and then get more from “Shiest”. Q: Did you ever see Elijah at 45 Charlton? A: No. Q: And how many times did you see Elijah? A: Maybe like 10 times overall. I saw him downtown when I was there for Caribana. Other than that I have only ever seen him in Scarborough. Q: And how did you know Elijah would get drugs from “Shiest” and sell them for him? A: Because the drugs would be in my purse and he would take them out and hand them out to people, and I was right there. Q: And, sorry, who would hand them out? A: “Shiest” would give them to whoever was there. Q: And had you ever seen Elijah as part of that? A: Yes. Q: And what did you see? A: I just see him hand him something plastic, wrapped. Q: So, you saw “Shiest” hand to who? A: To Elijah.

Analysis

[15] The question before me on this application is whether the evidence adduced at the preliminary inquiry would justify an inference that the applicant was in possession of the drugs found in the satchel at the time of the search. If such an inference is justified then the preliminary inquiry judge did not exceed his jurisdiction and there is no basis to interfere with it. If, however such an inference cannot be reasonably drawn from the evidence it would constitute a jurisdictional error. There would be an absence of evidence on an essential element of the offence. In this situation the order to stand trial would need to be quashed as there would be no evidence from which the court, acting judicially, could form the opinion that the evidence was sufficient to order the accused to stand trial.

[16] The applicant argues that this is not a case where possession of the drugs can be inferred from his presence in the apartment at the time of the search. It is noted that there was nothing else in the apartment to draw a link between the applicant and the apartment and Ms. Gunn gave evidence that, “people come and go at that house”.

[17] The applicant argues that in the context of the evidence in this case his presence in the apartment at the time of the search is meaningless. The applicant refers, for example to the Court of Appeal decision of R. v. Turner, supra, where the defendant was found standing close to the doorway of a bedroom. In that case the court stated,

In my view, the mere presence of the appellant standing close to the doorway of the bedroom does not establish much. It certainly does not by itself raise the inference that the appellant had the requisite knowledge and control of the gun, which was carefully hidden among folded clothing on a shelf in a bedroom closet.

[18] In the present case I agree that the applicant’s presence in the apartment by itself would not be sufficient to justify an inference that he was in possession of the drugs. However, I do not agree that his presence in the apartment was meaningless. This is not a situation where the drugs were carefully hidden. Instead, the drugs were located in a satchel which was unzipped and was located in the living area of the apartment.

[19] The applicant places considerable emphasis on the fact that while the satchel was unzipped the drugs which were contained in the satchel were not visible from the outside.

[20] In my view, while the drugs were not in open view, it is significant that they were in an unzipped satchel located in the living area. This is reflected in the evidence of Ms. Gunn who testified as follows:

Q: And the drugs that are in the apartment are they in plain view or are they hidden? A: No generally they are put away. The weed may be in plain view, but the other stuff is generally put away.

[21] Thus, the fact that the cocaine was located in an unzipped satchel which was placed on a counter in a living room area is significant. It would suggest that the persons in the apartment at that time were individuals who were trusted to be in the presence of the satchel and its contents which could be easily accessed.

[22] The evidence of Ms. Gunn about the applicant’s relationship with “Sheist” is also very important in considering what inferences can properly be taken in the circumstances. The applicant’s position is that Ms. Gunn’s evidence does not establish that the applicant was a drug dealer and that at its highest this evidence amounts to a one time transaction between the applicant and Mr. Hines of an unknown item which took place at some unknown time. It is asserted that this evidence is not capable of supporting a suggestion that the applicant was a drug dealer. The applicant refers to the fact that Ms. Gunn did not say that the plastic wrapped item contained drugs. All she testified to was that it was something wrapped in plastic. Even if the plastic wrapped item was in fact a quantity of drugs Ms. Gunn did not say it was the type of drugs found in the satchel. Moreover, even assuming that the item was cocaine, her evidence leaves open the question about whether the drugs were for selling, as opposed to personal use. There was also no evidence as to when she made this observation. It is also argued that the value of Ms. Gunn’s evidence is limited because at the time of the search of the apartment there were two other drug dealers in the room with the applicant. Thus, her opinion that the applicant was also a drug dealer is not logically probative of knowledge and control of the drugs in the satchel.

[23] In my view the evidence of Ms. Gunn could support an inference that the applicant was a drug dealer. She described him as a person who would get drugs from Mr. Hines “and run them for him”. She described how she would hold drugs in her purse and would then take them out and give them to Mr. Hines who would then give them out to people. She described a particular incident where a plastic wrapped bag was given to the applicant. This incident was described in the context of her answer that she would hold drugs in her purse for “Sheist”. It is reasonable to infer from her evidence that the plastic wrapped bag she spoke of contained drugs. The Preliminary Inquiry judge concluded that a possible inference from her evidence is that the applicant was a drug dealer. This is not the only inference which could be drawn, of course. However, at the preliminary inquiry stage the test is not whether the evidence could be reasonably capable of supporting other inferences nor is there a consideration of the witness’s credibility. The test is simply whether the evidence, if believed, could reasonably support an inference of guilt. In this regard as noted by the Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3 SCR 635 a preliminary inquiry judge is not permitted to assess credibility or reliability, and where there is more than one inference that can be drawn from the evidence, only inferences that favour the Crown are to be considered. It is also apparent that in considering what inferences maybe drawn a preliminary inquiry judge is required to consider the evidence in its totality. I am satisfied that the preliminary inquiry judge correctly applied these principles and that there was no jurisdictional error which would justify appellate intervention. The applicant’s presence in the apartment at the time of the search together with the location of the satchel which was unzipped and located in the bar area of the living room together with evidence suggesting he was a drug dealer was sufficient to support an inference that the applicant had knowledge and control of the drugs in the satchel. This is not the only inference which could be drawn, but as previously noted that is not the test which must be satisfied at a preliminary inquiry.

Conclusion

[24] For the above reasons, I have concluded that the application should be dismissed.

Justice M. McKelvey

Released: June 9, 2016

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ABDALLAH MOHAMED RULING RE: APPLICATION FOR CERTIORARI Justice M. McKelvey

Released: June 9, 2016