ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Afonso, Counsel for the Public Prosecutions Service of Canada
- and -
MUHAMMAD ZAFAR
A. Absiye, Counsel for the Accused
HEARD: November 24, 25, December 3 and 7, 2015
REASONS FOR JUDGMENT
Tzimas, J.
INTRODUCTION
1Muhammad Zafar was charged with the unlawful possession of cocaine for the purposes of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act, on February 27, 2013. On the same date he was also charged with unlawfully possessing crystal methamphetamine and heroin, contrary to Section 4(1) of the Controlled Drugs and Substances Act.
2The trial by judge alone was held over a period of 4 days in late November and early December 2015. At the beginning of the trial, Mr. Zafar pleaded not guilty to all three charges. A fourth charge was withdrawn by the Crown. In closing submissions, he admitted to the possession of the meth that was in a tiny baggie on the bed where he was found sleeping.
3The only issue before this court is whether or not Mr. Zafar had knowledge and control of the various drugs that were found at the unit 1208 – 360 Square One Drive, in Mississauga.
4The Crown’s position was that Mr. Zafar’s knowledge and control could be inferred from all of the circumstantial evidence before the court. He demonstrated familiarity with the unit where he was found, he was sleeping in the Master Bedroom as opposed to a couch in the living room or the bedroom den, he was given access and control to the unit where the drugs were found by an individual who was alleged to have sold him drugs on multiple occasions, there were multiple cell phones and drug paraphernalia in the Master Bedroom, and he was a habitual meth user and a former cocaine user. The Crown noted that given the drug quantities found in the apartment, it did not make sense that the alleged drug dealer, who gave Mr. Zafar the keys to the apartment so that he could go sleep, would risk giving control of his apartment to a drug addict who could then run away with the drugs.
5The defence submitted that the case came down to a credibility analysis given Mr. Zafar’s testimony before the court. Relying on the first branch of the test laid out in R v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, W(D), counsel invited the court to find Mr. Zafar to be a good and credible witness who was consistent in his evidence and who was not shaken at all during the cross-examination. Alternatively, the defence submitted that even if the court did not find Mr. Zafar to be credible, the balance of the evidence before the court was insufficient to support a finding beyond a reasonable doubt that Mr. Zafar had knowledge and control of the drugs that were found in the unit. Counsel pointed to gaps in the investigation and argued that the inferences advanced from the Crown did not flow from the evidence that was before the court.
6In my review and consideration of the evidence, although I find much of what Mr. Zafar said about the events that preceded his arrest and his relationship to the alleged drug dealer, Mr. Pannu, credible, his testimony regarding the police’s alleged discovery of a lease document, a social insurance card and a health card, compromised his overall credibility. Mr. Zafar said that the police found these documents and asked him about the names on the documents. But the Crown witnesses denied seeing any of these documents. The officer who interacted directly with Mr. Zafar denied seeing those documents. He said he only asked Mr. Zafar about where the drugs were located. In light of this discrepancy it would appear that this part of Mr. Zafar’s testimony reflected an attempt by Mr. Zafar to place others in the apartment and to distance himself from any connection to the drugs that were found there.
7It is noteworthy that Mr. Zafar raised this evidence for the first time in his testimony in court. His counsel advised the court that he was hearing this for the first time and agreed that the Crown be permitted to recall its witnesses to speak to the issue.
8At the same time, I am not satisfied beyond a reasonable doubt that the only rational inference to be drawn from the circumstantial evidence before the court was that Mr. Zafar had knowledge and control of the drugs and is therefore guilty. Given the way that the cocaine was hidden in the apartment, Mr. Zafar’s condition when he arrived at the apartment, the gaps in the evidence concerning the ownership and control of the apartment, the insufficient investigation of the cell phones, and the lack of evidence concerning Mr. Pannu’s possible role, there are a number of rational inferences that could be drawn from the circumstantial evidence before the court. The more rational explanation is that Mr. Zafar was in the wrong place, at the wrong time. That leaves me with reasonable doubt over Mr. Zafar’s knowledge and control regarding the drugs that were found in the apartment.
9Accordingly, I find Mr. Zafar not guilty of possessing cocaine for the purposes of trafficking. I also find him not guilty of possession of heroin. In light of his admission regarding the crystal meth by his side, I find him guilty of possession of methamphetamine.
BACKGROUND FACTS
10The parties agreed that Mr. Zafar was arrested at apartment 1208 located at 360 Square One Drive, in Mississauga on February 27, 2013. The police seized cocaine, heroin and methamphetamine from that apartment. The parties also agreed that Constable Andrew Harris prepared an expert report with respect to the cocaine that was seized from the said apartment. His report was tendered as opinion evidence of Constable Andrew Harris. It was further agreed that the cocaine seized was possessed for the purpose of trafficking by whoever possessed the cocaine. The total amount of cocaine seized was 136.5 grams. Its projected street value was $13,650 when purchased at the gram level or $5,000 when purchased at the ounce level.
EVIDENCE
a) Crown’s Evidence
11A total of eight police officers testified on behalf of the Crown, including Constable Andrew Harris. The remaining seven spoke of their respective roles in one or more of the following related activities: the surveillance of the apartment at 360 Square One Drive, the surveillance of Manpreet Pannu and his coming and going from that location in a black Hummer, the obtaining of a search warrant for the apartment in question, the execution of the search warrant, the arrest of Mr. Zafar, the search of the apartment, the location of a lease, a social insurance card and a health card. They were Detective Sergeant Garcia and Constables Farrow, Hill, Fraser, McDowell, Hobar, and Robitaille.
12The constables involved in the surveillance explained that there were three target individuals. The first person was Manpreet Pannu, the second was a named suspect and the third had a nickname “Umar” but was formally described as an unknown male suspect. In the two days before the actual search of apartment 1208, they described how they followed a Black Hummer coming and going from 360 Square One Drive. Cst. McDowell explained how he followed Mr. Pannu up to the twelfth floor at the noted building and how Mr. Pannu actually confronted him and asked him if he lived there. Cst. McDowell told him that he was waiting for his girlfriend and that ended the exchange. Cst. McDowell also testified that Mr. Pannu entered apartment 1208 without needing to unlock the door. He also noted that Mr. Pannu was wearing a horizontally striped shirt. The officers who searched the apartment found that striped shirt in the den area.
13At no time during the surveillance did the officers see Mr. Zafar, although they did indicate that they did see the Hummer at Mr. Zafar’s home address. That address was the same address that Mr. Zafar gave to the Ontario Provincial Police at the Woodbine Casino where he was issued a Provincial Offences Act ticket.
14The various Constables described their respective involvement with obtaining the search warrant and then its execution. Detective Garcia and Constable Farrow described how they found Mr. Zafar sleeping on the bed in the Master Bedroom. Mr. Zafar was partly dressed and partly covered by a comforter. They described some of the items that were found next to Mr. Zafar on the bed.
15Constable Farrow testified that he was the one who woke Mr. Zafar up. He said that Mr. Zafar was startled. He asked Mr. Zafar where the drugs were located but Mr. Zafar told him that he did not know anything about drugs. He also noted that Mr. Zafar looked like he was still high, his eyes were bloodshot and his pupils were dilated. Some of the other officers involved in the execution of the search saw Mr. Zafar but they did not have any direct contact. Constable Farrow recalled that Mr. Zafar said repeatedly that he was “only staying there”, but Constable Farrow said that he did not ask him what he meant by that comment because his focus was on the location of the drugs; he was not concerned about what that comment meant. Constable Farrow also noted a pipe and a white plastic bag with something that looked like crystal meth all located on the bed.
16Constables Farrow, Hill and Fraser searched the apartment. Constable McDowell was the Exhibits Officer. Constable Hill explained how he searched the Master Bedroom. Inside the closet, he found a red lions’ box. Within that box, he found another smaller box labeled “Sexual Secret Man”. Within that box was a bag with a substance that Constable Hill thought was meth. It was subsequently identified to be cocaine and the quantity was approximately forty to forty-five grams. At the opposite end of that closet Constable Hill found the POA ticket issued against Mr. Zafar on February 26, 2013. The address for Mr. Zafar was recorded as 1808-4090 Living Arts Drive.
17He then searched a closet in the hallway where the laundry stack was located. He pulled out the laundry machines, (stacked washer and dryer) and behind the equipment he found a grey Walmart bag. Within that bag he found a clear Ziploc bag with more of the same drugs that were found in the bag from the closet. The substance was identified as cocaine and the quantity was approx. 91.5 grams. Neither the shoe box nor the Walmart bag was in plain view.
18In the living room, Constable Farrow described a coffee table where he found some heroin wrapped in pieces of paper. There was also a tin foil that could be used to smoke heroine and an ashtray. One of the wrapped papers had meth, the other he believed had heroin. He did not find anything by the coffee table that belonged to Mr. Zafar. In the den that was next to the living room he said that he saw a mattress on the floor, tin foil, and ripped pieces of paper that would suggest somebody was using drugs in that space. He also found the striped shirt that Mr. Pannu was seen wearing on the previous evening.
19Constable Fraser, who assisted with the search of the apartment, was the one who obtained the master key from the security at 360 Square One Drive. He did not make any inquiries of the security person either before or after the search concerning the name(s) of the owner(s) and / or occupant(s) of that apartment. He said that when he entered the bedroom he observed on the bed a key ring, a Nokia cell phone, a dime baggie with a clear crystallite substance, and $25. On the night table he noted a digital scale, disguised to look like a cd case, a blackberry and another cellphone, later identified as a Samsung cellphone. He was shown various photos of the items that were seized and he was able to identify what was found on the bed and what on the night table. Regarding the smoking pipe, he said that he moved it from the bed to the night table. Constable Fraser did not conduct any further searches of the cell phones; he was unaware if anyone else undertook such a task. Regarding the digital scales, Constable Fraser could not recall if he knew what that was when he first saw it.
20Apart from his expert report, Constable Harris spoke about the typical paraphernalia used by drug dealers which include numerous cell phones to facilitate transactions, cutting agents, bulk product, bulk money, and zip baggies. He also described the use of a pipe and tin foil for the use of drugs.
21Finally, none of the Crown witnesses had any evidence to connect Mr. Zafar to apartment 1208. Nor did they obtain any evidence from any source to identify the ownership of the unit or alternatively the names of the occupants. In response to Mr. Zafar’s testimony concerning a lease document, a social insurance card and a health card, with two names, Umar Khan and Samina Geet, all of the Crown witness who were connected to this search confirmed that they never saw or seized any such documents. Some of them agreed that these items could have been very useful to the investigation underway as they might have shed some light on who controlled the apartment. Constable Hill, who was the one to find the Walmart bag said he did not see or seize such items. Constable Farrow, who was the only person to ask Mr. Zafar any questions was unaware of any such documents. The implication was that Constable Farrow therefore did not ask Mr. Zafar about any such items, though he was not asked that question.
b) Mr. Zafar’s Evidence
22Mr. Zafar testified that he was twenty-seven years old when he was arrested. He said that he lived at 4090 Living Arts Drive with his mother and brother. He was thirty years old at the time of the trial.
23On February 26, 2013, he said that he woke up around 10 a.m. and had a smoke on the balcony. He said that Mr. Pannu, whom he had gotten to know of the preceding six weeks or so, picked him up around 11 a.m. Their plan was to go to the Woodbine Casino. Mr. Zafar said that when Mr. Pannu picked him up he had a meth smoke in Mr. Pannu’s Hummer.
24When they arrived at Woodbine, Mr. Zafar tried to enter the casino but security asked for his identification. He realized that he did not have his identification with him. He left the casino and located Mr. Pannu, who was outside smoking. Mr. Pannu gave Mr. Zafar his own driver’s licence card. Both believed that Mr. Zafar would be able to enter with that card. Mr. Zafar was unsuccessful. He was stopped by security again and was charged with the failure to provide proper identification.
25Next, Mr. Zafar testified that he and Mr. Pannu “chilled together” for about half an hour and then proceeded to go to the Malton area where he said that Mr. Pannu bought more meth. Mr. Zafar explained that he smoked meth for a couple of years on a daily basis and that in the past few weeks it was Mr. Pannu who got it for him. On that particular day, he said that he bought $50 worth of meth.
26From the Malton area, Mr. Zafar said that they drove to the Sandalwood area. He said that he smoked all afternoon in the car. At some point he started to feel very sleepy and tired and asked Mr. Pannu if he could go and sleep at Mr. Pannu’s place. Mr. Zafar explained that he did not want his mother to see him in his condition. He also said that he had been to Mr. Pannu’s place on two recent occasions. He described the place as a location to go and “chill”. There, he and others would smoke meth and watch television. On his first visit he said that there were a couple of other people. He did not know who they were; they just said “hi”.
27According to Mr. Zafar, Mr. Pannu allowed Mr. Zafar to go and sleep at the apartment at Square One Drive. He told Mr. Zafar that he had to go somewhere but gave him the keys to the apartment and dropped him off at the front entrance of the building. By this time Mr. Zafar said that it was dark outside. He could not remember how he got into the building but he recalled going upstairs and going straight to the master bedroom. Before laying down, he said that he emptied his pockets, took out his pipe, his cigarettes, a dime baggie with crystal meth, and some cash. He could not remember if he put the stuff on the bed or on the night table. He also thought that he had two to three smokes. He said that he took off his track pants and dropped them on the floor. He did not care about anything. Nor did he notice if the closet in the master bedroom was opened or closed. He said that he did not go to the living room at any time; he just wanted to sleep, and so he did.
28The next thing he remembered was being woken up by the police. He said there were three police officers and the lights were on. They held him down, handcuffed him and kept asking him about where the drugs were located. He recalled specifically being asked about “five bricks”. Mr. Zafar said that he did not know what they were talking about. He tried to tell them that he did not live at that location and that he was just staying there. When asked whether he had ever seen any drugs he told the officers that he and others smoked in that apartment and that he had seen dime baggies, but nothing else. Mr. Zafar said that he was asked his name and then he was shown a lease paper that had two names on it. He did not know where the police found that document. He also said that he was shown a Walmart bag, which had a Social Insurance card and a Health card in it. Mr. Zafar said that he saw the names Umar Khan and Samina Geet on these documents.
29Mr. Zafar denied seeing a shoebox in the closet or the drugs on the coffee table. He reiterated that he did not go to the living room or pay any attention to anything; he just wanted to sleep.
30Mr. Zafar also testified that he worked for an Asian butcher and was paid $200 per day cutting meat. When challenged that he was lying about that job and that in fact he was drug trafficking to support his own addiction, he denied that suggestion. He explained that he did not have significant expenses as he lived with his mother. He explained that in his culture he would not be expected to contribute to the payment of rent. He also said that his family would give him money. That money, as well as his earnings of approximately $4,000 monthly from the meat-cutting job allowed him to support his addiction.
31When asked how the POA ticket came to be located in the closet, Mr. Zafar had no recollection of putting anything there. He suggested that maybe it fell out of his pocket when he took off his pants and dropped them on the floor.
32Mr. Zafar was asked about the fact that he slept in somebody else’s bed and his overall familiarity with the premises. He responded that this was not a family home where he might be concerned about where he went or where he slept. This was a place where some guys lived and hung out. He said he did not know their names but in any event, in his culture people are not terribly formal; he did not see anything wrong with his stay at unit 1208.
POSITION OF THE PARTIES
33As noted above, Crown’s position was that Mr. Zafar’s knowledge and control could be inferred from all of the circumstances around the individual. Mr. Zafar was familiar with the unit, he was a habitual meth user, he admitted to being addicted and since Mr. Pannu was supplying him with the meth, Mr. Pannu would have known that Mr. Zafar was a drug addict. The Crown pointed to the multiple cell phones in the Master bedroom and other paraphernalia for the inferences that there was drug trafficking activity going on. Given the drug quantities located in the apartment, the Crown contended that it did not make sense that Mr. Pannu would give Mr. Zafar the keys to the apartment, and run the risk that at some point Mr. Zafar might run off with the drugs that were located in the unit. The only rational explanation was that Mr. Zafar had knowledge and control of the drugs and possessed the cocaine for the purposes of trafficking. Selling the cocaine allowed him to support his crystal meth addiction.
34The defence submitted that the case came down to a credibility analysis given Mr. Zafar’s testimony before the court. Relying on the first branch of the test laid out in W(D), counsel invited the court to find Mr. Zafar to be a good and credible witness who was consistent in his evidence and who was not shaken at all during the cross-examination. Alternatively, the defence submitted that even if the court did not find Mr. Zafar to be credible, the balance of the evidence before the court was insufficient to support a finding beyond a reasonable doubt that Mr. Zafar had knowledge and control of the drugs that were found in the unit.
35In support of that position, the defence pointed to a number of deficiencies in the evidence that resulted in reasonable doubt. The first gap in the evidence related to the failure by those involved in the investigation to obtain any information concerning the ownership and occupation of the apartment. The second gap related to the failure to search the cell phones. The ownership of the unit and the information on the cell phones could have produced information that could identify the person(s) who had control of the unit. Without such additional evidence, there was no evidence to link Mr. Zafar to the apartment and to the cell phones.
36Furthermore, none of the drug paraphernalia could be linked to Mr. Zafar. There was also no evidence of any of Mr. Zafar’s personal belongings in any part of the apartment, apart from the item he identified as his; the pipe, the cigarettes the dime baggie and the money.
37In addition, there was no evidence that any of the officers involved with the surveillance leading up to the search had ever seen Mr. Zafar. Counsel also noted that the drugs that were found were not in plain view. The fact that there was evidence of drug activity going on at the particular unit did not mean that Mr. Zafar was involved in such activity.
ANALYSIS
a) Legal Principles
38To begin with, the Crown counsel bears the burden of proving beyond a reasonable doubt that Mr. Zafar possessed the cocaine for the purposes of trafficking. According to section 5(2) of the CDSA, the essential elements that must be satisfied by the Crown are that:
i. Mr. Zafar was in possession of a substance;
ii. the substance was cocaine;
iii. Mr. Zafar knew that the substance was cocaine and
iv. Mr. Zafar had possession of the cocaine for the purposes of trafficking in it.
With respect to the charges pursuant to s. 4(1) of the CDSA, the questions are limited to simple possession of heroin and crystal meth.
39In this case, it is admitted that the substance found in the master bedroom closet and behind the laundry was cocaine. Mr. Zafar admitted to the crystal meth. The heroin found in the living room was not disputed for what it was. Mr. Zafar denied seeing it at all. That leaves the issue of knowledge and control over the drugs as the only issue for the court’s consideration and determination. The question to answer is whether Mr. Zafar had knowledge and control of the various drugs that were discovered by the police at the unit 1208-360 Square One Drive, in Mississauga.
40Given Mr. Zafar’s testimony at trial the court must undertake a credibility analysis. This is to be assessed on the basis of the following steps as laid out in W.(D.):
If, I believe Mr. Zafar’s evidence, I must acquit;
If I do not believe Mr. Zafar’s evidence but I am left with reasonable doubt, I must acquit; and
Even if I am not left in doubt by Mr. Zafar’s evidence, I must consider whether on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that Mr. Zafar is guilty of possessing cocaine for the purposes of trafficking.
41When working through these question, it is crucial to note that mere disbelief of an accused’s evidence will not satisfy the burden of proof upon the Crown, see W.(D.) at p.409. To use the disbelief of the accused’s evidence as positive proof of guilt would be an error: R v. Dore (2004), 2004 32078 (ON CA), 189 C.C.C. (3d) 526 (ONCA), at p.527, (leave to appeal refused, [2004] S.C.C.A. No. 517; R v. H.(S.), [2001] O.J. No.118 at paras.4-8. The court must be satisfied on the totality of the evidence that there is no doubt as to the accused’s guilt.
42Finally, given that the Crown’s case against Mr. Zafar relies on circumstantial evidence to establish Mr. Zafar’s knowledge and control of the drugs, it is important to review the principles that govern such evidence. Where the court is asked to make a finding of guilt on the basis of circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence before the court is that the accused is guilty: see R v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-34. It is also noted that inference must be distinguished from speculation or conjecture. When assessing circumstantial evidence, the trier “must be alert to explanation or contradiction or inference pointing towards innocence”, see R v. Ukwaba 2015 ONSC 2953, [2015] O.J. No. 2349, at para.97.
43In addition, the trier must assess the reliability and the credibility of any underlying direct evidence and whether that evidence supports the circumstantial inferences. Inferential bridges and gaps that the court is being asked to make must also be considered very carefully. As outlined by Justice Hill in Ukwaba, supra., I also note the following:
Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact's application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70. Financial pressures, not economic status, may amount to a motive to become involved in a profit-motivated crime: R v. Mensah (2003), 2003 57419 (ON CA), 9 C.R. (6th) 339 (Ont. C.A.), at paras. 7-13 (leave to appeal refused [2003] S.C.C.A. No. 207); R. v. Phillips, 2008 ONCA 726, at paras. 50-51.
99 In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative "innocent" explanations other than the prosecution's theory of guilt, the court is not limited to inferential explanations based on "proven facts" but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014 SKCA 103, at para. 35; R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25.
100 Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences: R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42; R. v. Vu, 2002 BCCA 659, at para. 25.
44With these principles in mind, I turn to my findings in this case.
b) Findings
45Beginning with Mr. Zafar, I find much of his evidence credible. Up until his discussion of the lease document and the identification cards that he said the police officers showed him, there was very little in his testimony that raised any credibility concerns. Detective Garcia’s observation that Mr. Zafar’s chapped lips were indicative of a drug user was corroborated by Mr. Zafar’s own admission that he was, not only a drug user, but, also a drug addict. His explanation about not being able to enter the Woodbine Casino and the POA ticket that followed was consistent with the POA ticket that was found in apartment 1208 with Mr. Zafar’s name and address on it. The condition in which the police officers found Mr. Zafar, initially sleeping, and then startled, confused, with blood shot eyes, indicating that he was high, is consistent with Mr. Zafar’s own evidence that he was smoking meth extensively in the previous hours and that he needed to sleep. Mr. Zafar said he was woken up by three police officers and was startled.
46Mr. Zafar’s indication that when he arrived at apartment 1208, all he wanted to do was to sleep, made sense in light of his testimony that he was smoking all afternoon with Mr. Pannu. The random location of his clothing on the floor, by the bedroom closet, as identified by the officers who entered the bedroom, is further corroboration of somebody whose only focus was to get to bed. The explanation that the POA ticket, found on the floor, likely fell out of Mr. Zafar’s pant pocket, is not unreasonable. It adds an air of reality to Mr. Zafar’s overall state when he arrived at the unit. I find that his only focus was to get to a bed to sleep.
47In support of my findings, I also note that there was no direct evidence whatsoever to link Mr. Zafar to the subject apartment. He was unshaken in the questions concerning the reason for being at the apartment.
48On the subject of Mr. Zafar’s alleged employment at a butcher and the Crown’s submission that this evidence raised credibility questions over Mr. Zafar’s actual employment, there is some merit to the Crown’s suggestion that Mr. Zafar did not actually work at any butcher shop but trafficked in cocaine to support his drug addiction. However, Mr. Zafar’s explanation that he lived with his mother, that family members gave him money, that in his culture he would not be expected to contribute to the living and household expenses, and that on monthly earnings of $4,000 from cutting meat were sufficient to support his habit was compelling. The evidence before the court was insufficient to come to a conclusion one way or the other.
49The only issue in Mr. Zafar’s testimony that I have difficulty reconciling, but which in the result compromised his overall credibility was his reference to a lease document and the two identification cards. His recollection at trial of those documents as well as the two names for people that he said he did not know was odd, especially since on his own evidence he was otherwise so out of it and so confused when he was awaken in the middle of the night by the police.
50Up to and including the questioning about where the drugs were located in the apartment, Mr. Zafar’s evidence aligned with the evidence given by the constables who engaged with him directly. None of the Crown witnesses came across any of the suggested evidence. While it is recognized that the analysis contemplated by W.(D.) is not meant to engage in a credibility competition, it is remarkable that a number of the Crown witnesses readily acknowledged that a lease document or an identification card would have been useful to the investigation. The recording of everything else that was found in the unit was detailed and meticulous. It stands to reason that if those items were found, they would have been recorded. There was no evidence or even the contention that the police found such evidence but deliberately or accidentally omitted any reference to those documents. No explanation was offered by the defence as to how to reconcile the stark contrast in the evidence on this particular point. In the circumstances, I find that the police did not find the lease and the identification cards.
51In light of Mr. Zafar’s condition at the time of his arrest and his utter confusion over the situation, which I accept, I am obliged to wonder whether Mr. Zafar felt that he had to fabricate some additional information in the course of the trial to distance himself from the apartment and from the allegations against him. It is the only explanation I can reach having regard for all the evidence before me. That in the result casts a serious shadow over the totality of Mr. Zafar’s testimony and has the effect of compromising Mr. Zafar’s overall credibility, I am therefore unable to believe his testimony and proceed to an acquittal. I am also unable to say that I am left with a reasonable doubt on the basis of Mr. Zafar’s testimony.
52I turn to the Crown’s submission that the only rational inference to be drawn from the circumstantial evidence before the court is to conclude that Mr. Zafar had knowledge and control of the cocaine found in the apartment. With respect, I have difficulty finding beyond a reasonable doubt that the circumstantial evidence before the court and the proposed inference of guilt for Mr. Zafar is the only rational inference that could be drawn. I come to this conclusion on the basis of the following findings.
53First, the cocaine that was found in the apartment was not in plain view; it was hidden in two locations. Arguably, the cocaine found in the bedroom closet might have been easier to locate if one were to go looking. However, even then, the cocaine was in a bag that was in a box, and then within another box, a shoe box at that. It would not be unreasonable to find a shoe box in a closet and on that basis, one would not necessarily be tempted to look into such a box. The stash found behind the laundry machine was clearly concealed.
54A person who is in a high state as Mr. Zafar described himself, would have had limited to no capacity to start searching for drugs within the apartment, much less find the drugs and run away with them, as suggested by crown counsel. It is possible that once Mr. Zafar was well-rested he might then search the apartment for drugs but that theory becomes speculative in light of the evidence before the court that others came and went from this apartment. The theory of running away has limited appeal because Mr. Pannu knew where Mr. Zafar lived and could go after him if Mr. Zafar were to steal the drugs and run away. It begs the question, as to where would Mr. Zafar run away where he would be safe?
55Second, the failure to search the multiple cell phones that were found in the bedroom is significant. As with the other paraphernalia such as the tin foil, the digital scale, and the cutting agents, found in the bedroom and the other parts of the apartment, there was no evidence to suggest that the any of those objects belonged to Mr. Zafar. They could belong to anyone. This is a serious gap that cannot be overcome by an inference related to Mr. Zafar.
56Third, there is no evidence that Mr. Zafar had any separate or independent access to the apartment. Mr. Pannu controlled that access. He gave Mr. Zafar the key to the apartment. He could also take it away and he or others could show up at to the apartment at any time. These factors are relevant considerations when it comes to evaluating whether or not Mr. Zafar controlled the premises and by extension the trafficking of cocaine. To the extent that he had any control while he was alone in the apartment, that has to be contrast to his actual condition; given his condition, particularly as described by the officers who woke him up and arrested him, Mr. Zafar was in no condition to exercise any control.
57In the same vein, I reject the suggestion by the Crown that Mr. Zafar’s familiarity with the apartment and his informality in his use of the Master bedroom would support an inference that he had control of the premises and that the particular bedroom was actually his own. Based on the diagrams drawn by the officers of that apartment, the more compelling explanation is that the master bedroom, which was to the left of the main entrance was the closest bed to which Mr. Zafar could get as soon as he entered the apartment.
58This is a significant consideration because Mr. Pannu, who gave him the key to his place would have witnessed Mr. Zafar’s condition. Crown counsel invited the court to conclude that it would extremely unlikely for a drug dealer to entrust a drug addict with access to a place where he kept his drugs, for fear that the drug addict would run away with the drugs. This is one reasonable inference, but it is not the only one. Given Mr. Zafar’s condition, Mr. Pannu may not have been terribly worried about such an outcome. He would have known Mr. Zafar’s limitations in the circumstances. Moreover, he knew enough about Mr. Zafar to be able to go after him if Mr. Zafar did run away with the cocaine.
59The inference proposed by Crown counsel is also premised on the further implied inference that Mr. Pannu was the owner or occupant of the apartment and that he knew about the hidden cocaine. The evidence did support the inference that Mr. Pannu had a connection to the apartment, given the finding of his clothing in the den. The surveillance that had Mr. Pannu going to that apartment also suggested a connection to it. However, the fact that he occupied the den and not the Master bedroom could also suggest that others were in control of the premises and by implication others were hiding the cocaine in the apartment, without Mr. Pannu’s knowledge. The gap in the evidence concerning the comings and goings of others cannot be ignored and cannot be bridged by the circumstantial evidence before the court. An alternative explanation could implicate the other people who were targets in the police investigation. The court heard evidence that in their surveillance of the premises, the police had two additional target names. This observation only raises additional questions on the extent of Mr. Pannu’s own knowledge of what was or was not hidden in the apartment and by necessary implication the degree to which he might or might not be concerned about Mr. Zafar being left alone in the apartment.
60A further rational inference that could be drawn from the circumstantial evidence before the court is that Mr. Zafar was simply in the wrong place, at the wrong time. Given the evidence that Mr. Pannu actually had an encounter with one of the Constables and that he asked the officer who he was and what he was doing on the 12th floor, as well as the difficulties at the Woodbine Casino, it does raise the possibility that Mr. Pannu’s permission to Mr. Zafar to stay at unit 1208 may have been a deliberate move by Mr. Pannu to have somebody other than himself in the apartment.
61In light of these various other rational explanations that could be drawn from the circumstantial evidence, I am unable to conclude beyond a reasonable doubt that the only rational inference to be drawn from the circumstantial evidence before the court is that Mr. Zafar had knowledge and control of the drugs located in the premises of apartment 1208.
APPLICATION OF MY FINDINGS TO THE LAW
62In light of my findings, and turning to the requirements of the W.(D.) analysis, on the first question, I do not believe Mr. Zafar’s testimony in its entirety. I am left with questions over his credibility. I also cannot say that his testimony leaves me with any reasonable doubt. That said, the Crown’s contention that the only rational inference to be drawn from the circumstantial evidence is to find Mr. Zafar guilty, is unsupported by the possible alternative rational inferences that could be drawn. The gaps in the evidences that Crown counsel seeks to fill are simply too large to enable a conclusion of guilt beyond a reasonable doubt. On the totality of the evidence with the exception of the meth found by Mr. Zafar’s side on the bed, to which he admitted to possessing, I am left with reasonable doubt as to Mr. Zafar’s knowledge and control of the cocaine that was hidden in apartment 1208.
CONCLUSION
63Given the sum of my findings, I finding Mr. Zafar not guilty of possessing cocaine for the purposes trafficking and not guilty of the possession of heroin. I find him guilty of possessing crystal meth given his admission on the second charge.
Tzimas, J.
Released: January 22, 2016
CITATION: R. v. Zafar, 2016 ONSC 555
COURT FILE NO.: CRIMJ(F) 720/15
DATE: 2016-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MUHAMMAD ZAFAR
REASONS FOR JUDGMENT
Tzimas, J.
Released: January 22, 2016