COURT FILE NO.: 12-9/324 DATE: 20160622

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – LEON BOOKAL Defendant

Counsel: Kerry Benzakein, for the Crown Alonzo Abbey, for the Defendant

HEARD: April 26, 27, 28, 29, May 2, 3, 26, 2016

K.P. WRIGHT, J.

REASONS FOR JUDGMENT

[1] Mr. Bookal comes before this court charged with one count of possession for the purpose of trafficking cocaine, and one count of being in possession of the proceeds of crime. Both charges stem from a search warrant executed at Mr. Bookal’s place of residence on September 29, 2010.

[2] Mr. Bookal elected to be tried by judge alone.

[3] The evidence on the trial proper was heard over the course of five days. The Crown relied upon the evidence of eight police witnesses, and Mr. Bookal testified on his own behalf. Twenty exhibits were filed, including two Agreed Statements of Fact.

[4] At the outset of trial, defence counsel conceded that the quantity of cocaine found and seized by police amounted to possession for the purpose of trafficking. The sole issue on this count is whether the Crown has proven beyond a reasonable doubt that Mr. Bookal was in possession of the cocaine.

[5] At the conclusion of the trial, Crown counsel indicated that she would rely only upon the $8000 found in Mr. Bookal’s condominium as proof of possession of the proceeds of crime and not the $32000 found in Mr. Bookal’s safety deposit box.

[6] This is my judgment.

Overview of the Evidence

[7] I will now provide a very brief overview of the evidence. I will further develop the evidence when necessary in my analysis.

[8] On September 29, 2010, members of the Toronto Drug Squad executed a search warrant on Leon Bookal’s condominium.

[9] The search warrant authorized police to search Mr. Bookal’s condominium, his parking spot, locker 321 and any other storage space associated with the condominium.

[10] The search warrant was the conclusion of a two month long investigation called Project Shuffle. Mr. Bookal had been the subject of surveillance during the course of the investigation. Some of those surveillance observations are contained in the Agreed Statement of Facts marked as Exhibit 18.

[11] Mr. Bookal was alone in the condominium when the police breached the door, and he was arrested immediately thereafter.

[12] Constable Gajraj was assigned the task of central note taker and exhibits officer during the execution of the search warrant.

[13] It is an admitted fact that during the search, Officer Edgar seized a small unknown amount of crack cocaine from the pocket of a pair of jeans in a laundry basket inside Mr. Bookal’s condominium. It is also an admitted fact that Officer Edgar found and seized approximately $8000 in cash from inside the condominium.

[14] It is an admitted fact that during the search of the locker, Officer Wallace found 321.05 grams of cocaine in a bag on the floor next to a suitcase.

[15] It is an admitted fact that during the search of the locker, Officer Spencer found 360.5 grams of cocaine inside some tires, and inside a garbage bag filled with clothing.

[16] Officers Wallace and Spencer were the only officers assigned to search the locker. They both noted down that they searched locker 222. Both officers testified that prior to the trial, they were told by the Officer in Charge that locker 222 did not exist at the time of the search and they accepted that as true.

[17] Constable Gajraj, as central note taker, also recorded in the central notes that Officers Wallace and Spencer recovered property from locker 222. He did not attend at the lockers and did not recall the source of his information.

[18] Officers Wallace and Spencer said they only searched one locker and that they reviewed the search warrant prior to commencing their search.

[19] Officers Svendsen and Rochon from the Asset Forfeiture Unit testified that they attended at 88 Corporate Drive when the search warrant was being executed. They searched and took possession of Mr. Bookal’s vehicle.

[20] Officers Svendsen and Rochon both testified that they received the key to a Lexus from Constable Wallace. Both said they searched the car, placed all personal property into a bag and then delivered it to the Officers searching the locker.

[21] Detective Sergeant Babair was qualified and testified as an expert in drug trafficking. He said that the $8000 found in the bedroom drawer, was likely the proceeds of drug trafficking because of the way it was sorted and bundled with elastics.

[22] Mr. Bookal testified on his own behalf and said that he owned condominium unit 2201 located at 88 Corporate Drive and locker 321. He said the last time he used the locker was a year before the search warrant. He said the only thing in the locker was a Christmas tree.

[23] He said apart from the Christmas tree, nothing in the locker belonged to him including the cocaine. He said the pants that contained the cocaine discovered by Constable Edgar belonged to his friend Andre Samuels. He said his friend Andre Samuels had been staying at his condominium since early August 2010. He said that he travelled to Jamaica on August 6 and returned the beginning of September 2010. He said that he gave Andre Samuels the keys to the condominium and the locker when he left. He said Andre Samuels called him while he was in Jamaica and asked him if he could store some items in the locker.

[24] He said the $8000 found in his bedroom drawer belonged to him. He said he had loaned his friend this money to open a business. He said that his friend had paid him back incrementally in cash and he made the decision not to deposit this money into the bank.

The Principles to be Applied

[25] The principles to be applied in this case are the same as those to be applied in any criminal trial.

[26] In this case, Leon Bookal is presumed to be innocent, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

[27] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[28] It is not enough for me to believe that Mr. Bookal is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lays far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[29] Finally, in assessing the credibility of the witnesses in this case, I have reminded myself of the principles articulated by the Supreme Court of Canada in R. v. W.(D.), (1991), 63 C.C.C. (3d) 397.

Analysis

[30] In order to find Leon Bookal guilty of possession for purpose of trafficking, the Crown must convince me beyond a reasonable doubt that Mr. Bookal had both knowledge and control of the cocaine found and seized by police.

[31] The definition of possession in Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 is mirrored in subsection 4(3) of the Criminal Code, R.S.C. 1985, c. C-46. It reads as follows:

Section 4(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 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.

Section 4(3) of the Code creates three types of possession: (i) personal possession as outlined in section 4(3)(a); (ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and (iii) joint possession as defined in section 4(3)(b).

R. v. Pham, [2005] O.J. No. 5127

[32] The Crown’s case is primarily one of constructive possession.

[33] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.).

[34] The Crown acknowledges that there is no direct evidence of Mr. Bookal’s knowledge and control and that their entire case is based on circumstantial evidence.

[35] The Crown relies on the following circumstantial evidence to prove that Mr. Bookal had knowledge and control over the cocaine found and seized by the police:

• The locker searched by the police was owned by Mr. Bookal.
• The keys that accessed the locker were found on Mr. Bookal’s kitchen counter.
• An identification card and certificate in Mr. Bookal’s name were found inside the locker.
• Mr. Bookal owned the condominium and locker where the cocaine was found.

[36] To prove Mr. Bookal’s guilt, the Crown must satisfy the court that the only logical inference that can be drawn from the evidence is that Mr. Bookal had both knowledge and control over the cocaine that was seized. R. v. Griffin (2009) 2009 SCC 28, 244 CCC (3d) 289 (SCC).

[37] I am mindful that the Crown does not have to negative every possible conjecture consistent with Mr. Bookal’s innocence. R. v Beason [2008] O.J. No. 2027 (Ont. S.C.).

[38] The circumstantial evidence must be evaluated as a whole rather than as individual pieces to determine whether the Crown has satisfied the burden. R. v. Turner 2012 ONCA 570 (CA).

[39] There is no dispute that Mr. Bookal owned condominium unit #2201 and locker 321 located at 88 Corporate Drive. There is also no dispute that the police had prior judicial authorization to search locker 321.

[40] Notwithstanding that the Officers recorded in their notes that they searched locker 222, I am satisfied for the reasons stated in my Ruling dated April 25, 2016, that on September 29, 2010, the police did search locker 321. I do not intend to repeat those reasons now.

[41] As such, I am satisfied that Mr. Bookal, by virtue of being the owner of locker 321, did have some measure of control over the locker. The real issue on this trial is whether the Crown has satisfied me beyond a reasonable doubt that Mr. Bookal knew that there was cocaine in that locker.

[42] Mr. Bookal testified that the cocaine found in the locker and in the pants pocket did not belong to him and he did not know that it was there. He testified he was in Jamaica from August 6, 2010 to August 29, 2010 visiting family. He said his friend Andre Samuels was having marital difficulties and asked if he could stay in his condo while he was gone. Mr. Bookal agreed and gave Mr. Samuels a key to the condo and a key to locker 321. While in Jamaica, Mr. Samuels asked if he could stay longer than they had originally agreed upon. Mr. Bookal agreed and told Mr. Samuels he could use his locker for extra storage if needed. Mr. Bookal testified that the last time he had personally been to the locker was in January 2010 to store a Christmas tree. He said he did not have any other items in the locker and that is why he offered it to his friend. He denies having any tires in the locker, but he did recall Mr. Samuels telling him that he had purchased a set of winter tires. But at no point did he attend at the locker to see what Mr. Samuels had stored in there.

[43] He also denies ownership of the cocaine found in the pants pocket. His says the pants were found in a laundry basket that was designated for Mr. Samuels’ clothes. He said that when he had returned home from Jamaica, the condominium was a complete mess and that is when he instructed Mr. Samuels to keep his clothes separate.

[44] He testified that since his arrest, he has not spoken to Andre Samuels and he no longer considers him a friend. He also testified that Andre Samuels is currently serving a jail sentence for drug related charges.

[45] Crown counsel agrees that if I accept that evidence of Mr. Bookal, or am left in a reasonable doubt by it, I must acquit. R. v. W.(D.)

[46] She argues that I should reject the evidence of Mr. Bookal because it is self-serving and convenient. She says he only remembers things anchored in the Crown’s case and has tailored his evidence accordingly.

[47] By way of example, she directs me to Mr. Bookal’s evidence about the suitcase.

[48] Mr. Bookal says he borrowed a suitcase from his friend Mr. Meggo prior to leaving for Jamaica. The Crown argues that Mr. Bookal had to come up with this excuse to explain the police observations of a transfer of a suitcase between himself and Mr. Meggo in the Scarborough Town Center parking lot. She says it makes no sense that he would borrow a suitcase from Mr. Meggo when he could have just as easily borrowed one from his father or girlfriend.

[49] In my view, the fact that he could have borrowed a suitcase from his father or girlfriend does not make borrowing one from a friend more unlikely or unbelievable. Moreover, Mr. Bookal explained that Mr. Meggo had put some things in the suitcase for his mother who lived in Jamaica. Mr. Bookal was going to take those things to her when he arrived.

[50] It is an agreed fact that surveillance officers observed Mr. Bookal and Mr. Meggo meeting in the Scarborough Town Center parking lot on September 2 and September 14, 2010. Mr. Bookal has no memory of these meetings. Crown suggests that his lack of memory is selective and manufactured.

[51] I disagree and here is why.

[52] Mr. Bookal testified that he had been friends with Mr. Meggo most of his life and that it was not unusual for them to meet up in the Scarborough Town Centre parking lot. In fact, it seemed to be somewhat routine for them. There is nothing in the observations made by the police to suggest that these meetings were drug related. Given that Mr. Bookal was being asked to remember events that took place more than 5 years ago, I am not surprized that he could not remember these two meetings in September. I would have been more surprised if he could remember them.

[53] Mr. Bookal explained that he remembered meeting to get the suitcase because he was going back on to Jamaica to visit him mother. The trip was clearly significant to him. In my view, getting the suitcase from Mr. Meggo is anchored in that memory and not anchored or tailored to responding to the Crown’s evidence.

[54] It makes sense to me that he would remember that meeting and would not remember the other two.

[55] Crown Counsel argues that Mr. Bookal’s inability to remember details related to the search and the details related to his bail hearing impinge on his credibility.

[56] Again, I disagree.

[57] In assessing Mr. Bookal’s ability to recall, I am mindful that he is being asked to recall events that took place over 5 years ago. He, unlike the police officers, is not a professional witness and did not have the benefit of contemporaneous notes.

[58] I am not troubled by the fact that Mr. Bookal can’t remember the details of his first appearance in bail court 5 years ago. In my view, the fast paced world of bail court can be difficult for even a seasoned criminal to understand and absorb, let alone someone who was in bail court for the first time, as was the case for Mr. Bookal.

[59] Crown counsel relies on the identification card and certificate in Mr. Bookal’s name as proof of possession. Constable Spencer testified that he found these items inside the storage locker during the search. He was unable to say where he found the items. He was unable to say when he found them in relation to the other items he seized. He could not say if they were in plain view or not. He had no independent memory of the search and his notes were so sparse they were of virtually no assistance to him.

[60] Officers Wallace and Spencer have no memory or notes about meeting with the forfeiture officers before search the locker. They have no memory of Constable Rochon dropping off the contents of the vehicle search with them.

[61] Constable Rochon and Constable Svendsen testified the identification card and the certificate would, if found in the car, have been designated as personal property and turned over to the search team. They did not make a note or did not catalogue what personal property they found in the car. They had no recollection of what they found. It was unclear to me whether they recalled the actual search or if they were just relying on what their normal practice and procedure was. Constable Rochon testified that she took the personal property to the locker, spoke to an officer at the locker and then placed the property inside the locker. She has no note of doing that or speaking with the officer. I have reviewed her evidence thoroughly on this point. Despite her testifying, when pressed by the Crown, that she had an independent memory of this interaction, I am not convinced. Officers Spencer and Wallace had no memory of this bag of personal property or of Constable Rochon dropping it off at the locker they were searching. If this bag of personal property were placed in the locker as Constable Rochon said, I cannot ignore the real possibility that it contained Mr. Bookal’s identification and certificate, and that Constable Spencer mistook it for something stored in the locker. This concern looms large especially given Constable Spencer’s lack of note taking and independent recollection on this point.

[62] The Crown submits that because there are no demonstrated inconsistencies between the testimony of the police officers and their notes, I should fully accept their evidence. The difficulty I have is that all of the officers involved in this investigation adopted a practice of taking only minimal notes. They all seemed to be of the view that their notes were for their benefit only. I find this approach to be inconsistent with the judicially recognized obligation of police officers to take accurate, detailed and comprehensive notes. R. v. Scaheffer v. Wood, 2013 SCC 71, [2013] 3 S.C.R. 1053 (SCC) at par 68; R. v. Thompson, 2015 ONCA 800 at para 58.

[63] I find the notes taken by Constable Spencer and all the officers involved in this investigation to be completely inadequate. In my view, these note taking deficiencies shielded these officers in cross-examination. As such, the lack of inconsistency is of no value in my assessment. Most questions were met with the response of “I don’t know”. All of the officers testified that they only make notes of things that fall outside of their regular practice and procedure. This is not an uncommon procedure during police investigations. The difficulty in this case is that the investigation took place 5 ½ years ago. I have no certainty that what an officer found to be common practice and procedure almost six years ago remains the same today. Moreover, given the complete lack of independent memory coupled with insufficient notes, I am unable to adequately assess the testimony of any of these officers.

[64] I am mindful that Mr. Bookal’s evidence was not perfect. It is not expected to be. That is not the test. For the most part, I found Mr. Bookal to be a very forthcoming witness and his evidence compelling. I am further mindful that there were pieces of his evidence that lacked clarity that I have been unable to resolve. However, despite those difficulties, I still find myself left very much in a state of reasonable doubt as to his knowledge of the cocaine both in the locker and in his condominium.

[65] Turning now to the $8000 found in Mr. Bookal’s bedroom drawer. The Crown’s evidence on this count comes from Det. Sgt. Babair. He said it is likely the proceeds of crime because of how it is bundled. To say that this evidence is underwhelming would be an understatement. It simply cannot support a conviction. When coupled with Mr. Bookal’s evidence, which I cannot reject, it does not amount to proof beyond a reasonable doubt, and that is what is required.

Conclusion

[66] After a thorough review of the evidence, the law, and the submissions of counsel, I find that the Crown has not met its onus. I find myself left, very much, in a state of reasonable doubt. Our law directs that Mr. Bookal get the benefit of that reasonable doubt.

[67] As such, Mr. Bookal, I find you not guilty on both counts.

K.P. Wright, J.

Released: June 22, 2016

COURT FILE NO.: 12-9/324 DATE: 20160622

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LEON BOOKAL Defendant

REASONS FOR JUDGMENT K.P. Wright, J.

Released: June 22, 2016