Court File and Parties

COURT FILE NO.: CR15-90000052-0000 DATE: 20160930 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Lucas Price for the Crown

- and -

JEFFREY REBELO Jason Dos Santos for Jeffrey Rebelo

HEARD: May 16 - 20, 24 - 27, 2016

REASONS FOR JUDGMENT

CORRICK J.

Introduction

[1] In September 2013, police suspected that Jeffrey Rebelo was selling drugs and was in possession of a firearm. They conducted surveillance on Mr. Rebelo for three days, between September 26 and 28, 2013. On the 28th, they executed two search warrants on his home and seized a large quantity of marijuana and cocaine, $7,225 in Canadian currency, digital scales, small baggies, and a list with names and numbers on it. As a result, Mr. Rebelo was arrested and charged with possession of marijuana and cocaine for the purpose of trafficking, and possession of proceeds of crime.

[2] He was tried by me without a jury.

[3] At the trial, the Crown applied to introduce in evidence utterances Mr. Rebelo made when he was arrested on September 28, and a videotaped statement he gave later that same day at the police station. Counsel for both parties agreed that the evidence on the voir dire to determine the admissibility of those statements and the evidence on the trial would be heard together, and that the evidence on the voir dire, other than Mr. Rebelo’s, would be applied to the trial.

[4] On May 26, 2016, I ruled that the utterances Mr. Rebelo made upon arrest were admissible, but that the videotaped statement was not. This judgment includes my reasons for that ruling.

[5] On September 28, 2013, police executed a Criminal Code and a Controlled Drugs and Substances Act search warrant on Mr. Rebelo’s residence at 20 Cayuga Avenue in Toronto. Mr. Rebelo was arrested at a restaurant near his home moments before the warrants were executed.

[6] The search warrants were executed at 6:00 p.m. Mr. Rebelo’s parents were present in the home. Items were seized from Mr. Rebelo’s bedroom in the basement and from the garage.

[7] The following items were seized from Mr. Rebelo’s bedroom:

On a closet shelf under folded jeans 8.66 grams marijuana

On top of dresser in a basket and in two separate bundles on top of dresser $2,815 in Canadian currency

On top of dresser in a cardboard tube $400 in Canadian currency

On top of dresser in a Nokia box $2,250 in Canadian currency

In dresser drawer $2,260 in Canadian currency

In dresser drawer ▪ Mr. Rebelo’s passport ▪ Photo of Mr. Rebelo and a woman

[8] The following items were found in the garage:

On the workbench ▪ A coffee grinder containing a green leafy residue. ▪ A green piece of paper with names and numbers written on it.

On top of the refrigerator behind a stereo ▪ A clear container containing two digital scales, one with a green leafy residue on it. ▪ Beside the container, a clear plastic bag containing 60.36 grams of marijuana.

Inside refrigerator ▪ A large Maxwell House coffee tin with a false bottom, which contained a Ziploc bag with 299.21 grams of compressed cocaine. ▪ A large can of Arizona iced tea with a screw top lid that concealed an empty compartment.

Above the refrigerator on an open shelf that held cleaning supplies. ▪ An open box of garbage bags that held a Ziploc bag containing 108.61 grams of compressed cocaine. ▪ Behind the box, a knotted piece of plastic containing 8.26 grams of marijuana. ▪ A chamois mitt that held a tupperware container that contained a digital scale with a white powdery residue on it; four Ziploc bags containing numerous smaller Ziploc bags; a knotted piece of plastic containing three green pills.

In overhead storage cupboard #1 A black garbage bag containing paper gift bags and a white knotted plastic bag that contained two replica firearms.

In overhead storage cupboard #2 ▪ Grey gym bag containing one Ziploc bag of marijuana, two vacuum sealed bags of marijuana and one empty vacuum sealed bag. The bags contained 205.12, 221.43 and 219.84 grams of marijuana. ▪ Nike shoe box containing three vials of Testosterone Propionate, alcohol swabs, 19 factory-packed syringes and a clear plastic bag containing Nolva tablets.

Storage room attached to garage A hydraulic press

[9] A total of 717.73 grams of marijuana and 407.82 grams of cocaine were seized from the garage. The value of the marijuana was between $2,720 and $7,260 depending on how it was sold. The cocaine’s value was between $18,733 and $44,440, depending on how it was sold. It was agreed between the parties that the marijuana found in the grey gym bag and the cocaine found in the garage were possessed for the purpose of trafficking.

[10] A total of $7,725 in Canadian currency was seized from Mr. Rebelo’s bedroom.

[11] No vacuum sealer was found on the premises.

[12] It was conceded by Mr. Dos Santos, Mr. Rebelo’s counsel, that the bedroom in the basement and the items found in it belonged to Mr. Rebelo.

[13] Given these admissions, the issue that I must determine is whether Mr. Rebelo had knowledge and control of the drugs in the garage, and whether the cash seized from his bedroom was the proceeds of crime.

Mr. Rebelo’s Statements

[14] The Crown applied to introduce utterances made by Mr. Rebelo when he was arrested, and a videotaped statement he gave at the police station. During the trial, I ruled the utterances admissible and the videotaped statement inadmissible. I will deal with them separately.

Utterances

[15] On September 28, 2013, Mr. Rebelo and his girlfriend were approached by police officers in a restaurant at 5:52 p.m. Officers Small and Storey arrested Mr. Rebelo. Officer Harris detained Mr. Rebelo’s girlfriend. Officer Small testified that he told Mr. Rebelo that he was under arrest for the unauthorized possession of a firearm and possession of narcotics. He and Officer Storey patted Mr. Rebelo down. Officer Storey seized a set of keys from Mr. Rebelo and left the restaurant with the keys to assist in the execution of the search warrants. Officer Small advised Mr. Rebelo of his rights to counsel. He asked him if he understood. Mr. Rebelo did not reply. Officer Small asked him if he understood what he was charged with. Mr. Rebelo said, “no, what’s this all about.” Officer Small explained that two search warrants had been authorized for his house and that he was the person of interest listed in those search warrants. When asked whether he wanted to speak to a lawyer, Mr. Rebelo said, “no, this is bullshit. I have nothing in my house.”

[16] Officers Small and Harris stood outside of the restaurant with Mr. Rebelo and his girlfriend waiting for police cars to transport them to the police station. Officer Small and Mr. Rebelo stood about 15 feet away from Officer Harris and Mr. Rebelo’s girlfriend. Mr. Rebelo’s girlfriend was upset and crying.

[17] While waiting, Mr. Rebelo repeatedly asked Officer Small what was happening. Officer Small testified that he explained the search warrant process to Mr. Rebelo four times. Mr. Rebelo was very nervous, according to Officer Small. He was sweating, breathing heavily, and rocking back and forth.

[18] Officer Small asked Mr. Rebelo if he had any drugs in his house. Mr. Rebelo replied that he had one or two pounds of marijuana in the garage. Mr. Rebelo also told Officer Small that he lived in the basement of the house, spent time in the garage and had no weapons or other drugs in the house.

[19] Officer Small testified that shortly after, Officer Harris told him that a large quantity of cocaine had been located at Mr. Rebelo’s residence. When Officer Small told Mr. Rebelo this, Mr. Rebelo hung his head and said that the drugs were his; that they had nothing to do with his parents or his girlfriend. His girlfriend was sobbing at this time. When Officer Small asked him why he had lied, Mr. Rebelo said that he had never been arrested before and thought he would take a chance and maybe get away with it. He reiterated that the drugs were his and that his girlfriend was not involved.

[20] Officer Harris testified that she did not recall being told that a large quantity of cocaine had been found at Mr. Rebelo’s residence while she was at the restaurant. She was in telephone contact with Detective Balint, the officer in charge of the execution of the search warrants. Officer Harris testified that Detective Balint informed her that a large quantity of marijuana had been seized from Mr. Rebelo’s residence and that Mr. Rebelo and his girlfriend should be arrested for possession of marijuana for the purpose of trafficking. She arrested Mr. Rebelo’s girlfriend for that offence. She did not hear Officer Small arrest Mr. Rebelo.

[21] Detective Balint testified that he advised Officer Harris to arrest Mr. Rebelo and his girlfriend for possession of cocaine and marijuana for the purpose of trafficking.

[22] Mr. Rebelo testified on the voir dire. He said that Officer Small arrested him and started questioning him inside the restaurant at a busboy’s station. He asked Mr. Rebelo where the guns and heroin were. Mr. Rebelo said that he had no guns or heroin. When asked, Mr. Rebelo told Officer Small that his parents and two pit bull dogs were in his house. According to Mr. Rebelo, Officer Small was very aggressive and continued to ask him where the guns and heroin were. He told Mr. Rebelo that people might get into trouble if he did not tell him where the heroin and guns were. Officer Small did not specify who would get into trouble, but Mr. Rebelo assumed that it would be his parents or his girlfriend. This conversation occurred at the busboy’s station, according to Mr. Rebelo.

[23] Mr. Rebelo testified that he told Officer Small that his girlfriend had nothing to do with this and that she had a new baby and had to go home. In response to Officer Small’s repeated questioning, he told Officer Small that he had a little bit of weed. He did not remember hanging his head or telling Officer Small that the drugs were his after Officer Small told him that cocaine had been found.

Videotaped Statement

[24] Mr. Rebelo gave a videotaped statement to Officers Askin and Harris at 12 Division. Mr. Rebelo testified that he was placed in a holding room when he arrived at 12 Division. While there, he heard police officers place his girlfriend in the next room. After he was strip searched, Officer Askin entered the room and told him that a large amount of cocaine and marijuana had been found in his garage. Officer Askin told him that his girlfriend was in the room next to him, that the police were still at his house, and that everyone would be arrested if he did not admit to possessing the drugs. Mr. Rebelo testified that he started “freaking out” and told Officer Askin that his girlfriend and parents had nothing to do with the drugs, and that he was willing to give a statement. Officer Askin told him that he could not ask for a lawyer or make any reference to the conversation they were having while he was being videotaped. Mr. Rebelo agreed. The conversation lasted only a few minutes, according to Mr. Rebelo.

[25] Mr. Rebelo testified that he agreed to give a statement because he feared that if he did not, his sixty-year-old parents and his girlfriend, who had a new baby, would be arrested and go to jail.

[26] A short time later, Officer Askin returned to the holding room and asked Mr. Rebelo if he was ready to give a statement. Mr. Rebelo said he was. He and Officer Askin walked to a room equipped with video equipment. In that room, Officer Askin told Mr. Rebelo again that he had to admit that everything found in his residence was his or else everyone would go to jail. He also told him that if he said anything on camera or gave a signal about their prior conversation, their deal was off. Finally, Officer Askin told him that if he admitted possession of the drugs and helped the police out, they could get him “less time.” Officer Askin and Mr. Rebelo were alone in the room at the time.

[27] After this discussion, Officer Harris and the Commissioner of Oaths entered the room. Officer Askin read him his rights to counsel and cautioned him. Mr. Rebelo gave a videotaped statement acknowledging knowledge and control of the cocaine and marijuana located at his home. Mr. Rebelo testified that his mind was racing because he was worried about his parents and girlfriend. He did not ask for a lawyer because Officer Askin had made it clear to him that if he did, their deal was off. He testified that he made a statement and told the officers what they wanted to hear in order to protect his parents and girlfriend.

[28] Officers Askin and Harris testified that Detective Balint assigned them to take a statement from Mr. Rebelo at the debrief meeting held at 12 Division at 7:55 p.m. Officers Askin and Harris set up the interview room, tested the functioning of the video equipment, obtained a disc to record the interview, and notified the Commissioner of Oaths to attend. Officer Askin could not recall who did what exactly that evening to prepare for the taking of Mr. Rebelo’s statement. Officer Harris testified that they prepared the interview room together. She did not know if she was constantly in Officer Askin’s presence after they were asked to take Mr. Rebelo’s statement.

[29] Officers Askin and Harris testified that they escorted Mr. Rebelo from the holding room to the interview room together. They testified that they had no conversation with Mr. Rebelo about the case en route to the interview room. As soon as they entered the interview room, the video recording was started. Officer Askin denied having any conversation with Mr. Rebelo until he and Officer Harris accompanied him to the statement room. He denied speaking to Mr. Rebelo in the holding room before taking the videotaped statement. He denied telling Mr. Rebelo that his girlfriend would be released if he admitted possessing the drugs found at his home. Officer Askin testified that before going into the interview room, he did not know whether Mr. Rebelo was going to make a statement.

[30] Detective Balint testified that he assigned Officers Askin and Harris to take a statement from Mr. Rebelo after he had been told that Mr. Rebelo wanted to give a statement. He was unable to recall when he was told that Mr. Rebelo wanted to give a statement or who told him.

The Law of Voluntariness

[31] The Crown bears the onus of proving beyond a reasonable doubt that the statements Mr. Rebelo made to the police were voluntary. Mr. Dos Santos argued that they were not because Mr. Rebelo was induced by the police into making both statements by the threat that his parents and girlfriend would be arrested and charged if he did not admit to possession of the drugs.

[32] The Supreme Court of Canada recognized in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38 that a statement may be found to be involuntary where the threats or promises made by the police are not directed towards the accused person, but towards another person. In such a situation, it is important to consider the relationship between the accused person and that other person and all of the surrounding circumstances of the accused person’s statement. In addition, the Court held that not every inducement offered by the police will render a statement involuntary. The inducement only becomes improper when it is strong enough on its own or combined with other factors, “to raise a reasonable doubt about whether the will of the subject has been overborne.” Ibid. at para. 57.

[33] Dealing first with Mr. Rebelo’s utterances to Officer Small at the time of his arrest. Mr. Rebelo testified that Officer Small told him that other people might get in trouble if Mr. Rebelo did not tell him where the heroin and guns were. This conversation occurred at the busboy’s station.

[34] I do not accept Mr. Rebelo’s evidence about what Officer Small said. Officer Small was assisting another team in its investigation of Mr. Rebelo; an investigation that had nothing to do with heroin. It makes no sense that Officer Small would ask Mr. Rebelo about heroin. In addition, Mr. Rebelo’s recollection of the events at the restaurant is not reliable. He testified that he was upset and very nervous at the time, vomiting when he was in the police cruiser. His mental state may have affected his ability to recall the events accurately. He estimated that he was at the restaurant where he was arrested for about 80 minutes, when in fact he was arrested at 5:52 p.m. and arrived at 12 Division at 6:43 p.m., 51 minutes later. He testified that he spent 50 to 60 minutes sitting in the police car; 20 to 30 minutes before he vomited and another 30 minutes afterward. Officers Fuller and Chang, who transported Mr. Rebelo to the police station, testified that they arrived at the restaurant at 6:20 p.m. and left 16 minutes later at 6:36 p.m.

[35] Furthermore, even if I accepted that Officer Small told Mr. Rebelo that other people might get into trouble if he did not tell him where the guns and the heroin were, there was no evidence that Mr. Rebelo’s will was overborne as a result.

[36] After considering all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Rebelo’s utterances to Officer Small were voluntary, and are therefore admissible.

[37] I have reached the contrary conclusion with respect to the videotaped statement given by Mr. Rebelo. Mr. Rebelo’s evidence about his conversation with Officer Askin in the holding room raises a reasonable doubt in my mind that the statement he gave on videotape was voluntary.

[38] There is competing evidence about whether Officer Askin spoke to Mr. Rebelo in the holding room prior to escorting him to the interview room. Mr. Rebelo said that he did. Officer Askin denied doing so.

[39] Two pieces of evidence in particular support Mr. Rebelo’s evidence that Officer Askin spoke to him in the holding room and determined that Mr. Rebelo was willing to give a statement.

[40] The first is the preparation Officers Askin and Harris undertook to ready the interview room prior to Mr. Rebelo’s arrival. This included arranging the presence of the Commissioner for Oaths, who was in the interview room when Mr. Rebelo entered. Officer Askin testified that he did not know whether Mr. Rebelo was going to give a statement until he gave it, yet the presence of the Commissioner for Oaths was arranged before Mr. Rebelo was retrieved.

[41] The second is Detective Balint’s evidence that he assigned Officers Askin and Harris to take a statement from Mr. Rebelo after he received information that Mr. Rebelo wanted to give a statement. Officers Askin and Harris testified that they were assigned to take the statement at the debrief meeting, which was held between 7:55 and 8:00 p.m. Mr. Rebelo’s statement was taken at 8:45 p.m. It is unknown how Detective Balint would have learned that Mr. Rebelo was willing to give a statement unless another officer told him. Detective Balint had no personal dealings with Mr. Rebelo that evening.

[42] I am required to consider all of the circumstances when determining the voluntariness of Mr. Rebelo’s statement. Before giving the statement, he knew that his girlfriend was in distress, he knew that she was being held in the room next to his at the police station, and he knew that her infant daughter was being returned home to her that evening by her daughter’s father. He also believed that the police were at his home with his 60-year-old parents. These circumstances, together with Mr. Rebelo’s evidence about his conversation with Officer Askin in the holding room, raise a reasonable doubt in my mind about whether Mr. Rebelo’s videotaped statement was voluntary, and it is therefore inadmissible.

The Evidence on the Trial

[43] Two teams of officers were involved in the investigation and arrest of Mr. Rebelo. One team, led by Detective Johnston, had Mr. Rebelo under surveillance on September 26, 27, and 28, 2013. When that team of officers went off duty on September 28, another team, led by Detective Balint, continued the investigation, ultimately arresting Mr. Rebelo and executing the search warrants at his residence. Other than Mr. Rebelo’s utterances to Officer Small, the Crown’s case is based on circumstantial evidence.

[44] The defence called Edmund Rebelo, Mr. Rebelo’s father, as a witness.

[45] Many of the facts in this case are not in dispute. Counsel disagree about the reasonable inferences that can be drawn from the circumstantial evidence presented by the Crown.

[46] I am going to discuss the specific pieces of evidence upon which the Crown relies, and the evidence of Edmund Rebelo.

Mr. Rebelo’s connection to the garage

[47] Throughout the three days of surveillance, Mr. Rebelo was observed driving a black Tahoe, which he parked in a garage behind his house. No other cars were seen entering the garage during those three days. Mr. Rebelo’s father testified that he parked his car on the street. Mr. Rebelo operated the garage door remotely from the Tahoe. The car accessed the garage from a laneway that ran east and west behind the homes on Cayuga Avenue. A person could also enter the garage through another door that opened into the backyard of the home. Officer Storey testified that one of the keys he seized from Mr. Rebelo unlocked this door.

[48] Photographs of the interior of the garage show a large, organized, decorated space that contained, among other things, a workbench, refrigerator, microwave, television, and equipment used for weight training, including a bench, barbells, and free weights. A large mirror was hung on one wall. Edmund Rebelo described the garage as a hang out for Mr. Rebelo and his friends. Mr. Rebelo had the television cable extended to the garage so that he and his friends could watch soccer games there.

[49] A storage room with a separate entrance was attached to the garage. It contained gardening and construction tools. Officer Magee seized a hydraulic press from that room. It was an agreed fact that the cocaine found in the garage had been compressed, and that a hydraulic press such as the one seized by Officer Magee could compress powder cocaine. There was no cocaine residue found on the seized press.

[50] Mr. Rebelo had a key to the back door of the garage, he used a remote control to open the front door of the garage, and he parked his car in the garage. His father testified that Mr. Rebelo decorated the garage, watched soccer games in the garage, worked out in the garage and hung out with his friends in the garage. I find that Mr. Rebelo had the ability to exercise control over the garage and had a substantial connection to it.

Items in Plain View

[51] Officers Storey and Brind’Amour searched the garage.

[52] Officer Storey testified that upon entering the garage, there was a strong smell of marijuana. On top of the workbench, he found a grinder with the lid off. It contained a green residue, which was analyzed as marijuana. Beside the grinder on the workbench was a GNC jar that appeared to contain some sort of health supplement.

[53] Officer Brind’Amour seized a piece of green paper that was sitting loose on the top shelf of the workbench. It appears to be a ledger with names and numbers written on it. Some numbers are scratched out. Written beside one person’s name are the words “100 weed - 245 dope.” Mr. Price argues that this is a record of that person’s debts for two different drugs.

[54] Mr. Price submits that this piece of paper is a drug debt list. I agree.

Drug Transactions Observed by Police

[55] While under surveillance, Mr. Rebelo was observed engaging in what police officers described as hand-to-hand drug transactions.

[56] On September 26, 2013 at 12:16 pm., Detective Johnston saw Mr. Rebelo leave the garage in his Tahoe. Detective Johnston followed him. At Avon Avenue, Mr. Rebelo pulled his car over to the curb, and a male approached his passenger window. As Detective Johnston drove slowly by the left side of Mr. Rebelo’s car, he saw the male leaning in to the car, and Mr. Rebelo leaning toward the passenger side. Detective Johnston saw hand movement and then saw the male put something in his right pocket. The entire transaction took about 10 seconds. As an experienced drug investigator, Detective Johnston testified that he believed that the meeting was a drug transaction.

[57] Mr. Dos Santos questioned the accuracy of Detective Johnston’s characterization of the transaction. Detective Johnston did not see anything pass from Mr. Rebelo to the male, and the male was not subsequently investigated to determine if he was in possession of a narcotic. He also challenged the ability of Detective Johnston to observe the transaction in the manner he said he did without being detected.

[58] Detective Johnston testified that he did not have the male investigated because he did not want to jeopardize the investigation into Mr. Rebelo after a single drug transaction. He also did not want to redeploy two surveillance officers to investigate the male and risk losing sight of Mr. Rebelo.

[59] He also testified that Mr. Rebelo was focused on the male and did not observe Detective Johnston driving by slowly.

[60] Detective Johnston testified that the manner and timing of the meeting, together with his observation of the man putting his right hand into his pocket, contributed to his conclusion that Mr. Rebelo had engaged in a drug transaction. His conclusion was also based on the hundreds of drug transactions he had seen in his career.

[61] I accept his evidence. He carefully explained the actions he took to observe the transaction. He did not embellish his evidence. He did not claim to have seen anything pass from Mr. Rebelo to the male. He did not claim to have seen the male with anything in his hand. I found Detective Johnston to be a credible witness.

[62] On September 27 at 11:55 a.m., Detective Johnston observed Mr. Rebelo pull his car over to the southwest corner of Ossington and Davenport, stop, and then back up. A white male, who was on the sidewalk, approached the passenger side of Mr. Rebelo’s car. After 10 or 15 seconds, Mr. Rebelo drove away. Officer Johnston made this observation from about 100 metres behind Mr. Rebelo’s car, where he had stopped at the curb. Officer Johnston did not see what transpired between Mr. Rebelo and the male, but the nature of the transaction and its very short duration led him to believe that it was a drug transaction.

[63] Mr. Dos Santos suggested that the court ought not to accept Detective Johnston’s evidence because his observations were not recorded on camera. I do not accept that submission. The fact that these observations were not recorded does not lead me to conclude that Detective Johnston is fabricating his evidence. I accept that Detective Johnston observed a second suspicious street transaction on September 27.

[64] Officer Fortella also observed what he believed was a drug transaction on September 26. He was 50 or 60 feet away when he saw Mr. Rebelo drive his Tahoe into the garage around 1:48 p.m. As the Tahoe was reversing into the garage, Officer Fortella saw a male walk toward the garage. He saw Mr. Rebelo and the male stand side-by-side, facing the laneway, talking. Mr. Rebelo handed a small item to the male, who received it in his right hand. The male looked down at it, placed it in his left hand and put it in his left pocket. He then handed something to Mr. Rebelo, and left. The transaction took seconds. Officer Fortella believed that he had observed a drug transaction.

[65] Mr. Dos Santos questioned the veracity of Officer Fortella’s evidence. He pointed to the fact that Officer Fortella testified that the male was wearing a red and white striped tank top but at the preliminary hearing testified that he was wearing a red tank top. When the inconsistency was pointed out to Officer Fortella, he was not prepared to admit that he was mistaken about the tank top. Rather, he said that the shirt was mostly red, but had some white in it. I do not consider this discrepancy significant and neither it nor Officer Fortella’s explanation about the discrepancy cause me to doubt his credibility.

[66] Mr. Dos Santos also submitted that it was highly unlikely that Officer Fortella could remember the details of this transaction when his notes contained no details, but simply described it as a hand-to-hand transaction. Officer Fortella explained that he used his notes only to refresh his memory. He remembered the transaction because he found it unusual that the male appeared to study what Mr. Rebelo had given him before putting it in his pocket. The lack of detail in Officer Fortella’s notes does not cause me to doubt the credibility or reliability of his evidence.

[67] Finally, Mr. Dos Santos argued that it was highly unlikely that a drug transaction would be conducted in front of the open garage door with no effort to conceal what was taking place. On the other hand, as Mr. Price pointed out, by facing the lane, the parties were able to see the presence of anyone in the lane.

[68] I accept the evidence of Officer Fortella that he observed a hand-to-hand drug transaction that day.

Mr. Rebelo’s Utterances to Officer Small

[69] Officer Small testified that Mr. Rebelo made certain utterances to him while they waited for police cars to transport Mr. Rebelo and his girlfriend to the police station.

[70] After arresting Mr. Rebelo, reading him his rights to counsel and cautioning him, Officer Small asked him whether he had any drugs in his house. Mr. Rebelo replied that he had one or two pounds of marijuana in the garage. He also told Officer Small that he lived in the basement of the home and spent time in the garage.

[71] A short time later, Officer Harris told Officer Small that a large quantity of cocaine had been seized from Mr. Rebelo’s residence. When Officer Small informed Mr. Rebelo of this, he hung his head and said that the drugs were his and had nothing to do with his girlfriend or his parents. When Officer Small asked him why he had lied, Mr. Rebelo repeated that the drugs were his and had nothing to do with his parents or girlfriend.

[72] Mr. Dos Santos argued that Officer Small’s account of Mr. Rebelo’s utterances was not reliable or credible for a number of reasons.

[73] First, the utterances were not recorded. Officer Small testified that he did not record Mr. Rebelo’s statement because he did not have a recording device in his car or on his person. Although an audio recording of the statement would have been helpful, its absence is not a sufficient reason, standing alone, to reject Officer Small’s evidence.

[74] Second, Officer Small’s evidence about when the police cruisers left the restaurant with Mr. Rebelo and his girlfriend was inconsistent with the evidence of Officer Fuller, who transported Mr. Rebelo to the police station. Officer Fuller testified that after he placed Mr. Rebelo in the back of his cruiser, he stood by waiting for the cruiser to transport Mr. Rebelo’s girlfriend. Officer Small testified that Mr. Rebelo was transported to the police station before the cruiser arrived to transport his girlfriend. This inconsistency relates to an inconsequential detail in my view. Furthermore, there is other conflicting evidence on this point. Officer Fuller’s partner, Officer Chang, testified that she did not recall the second police car arriving before she and Officer Fuller left the scene with Mr. Rebelo. This inconsistency does not cause me to doubt the accuracy of Officer Small’s evidence.

[75] Third, Officer Small did not recall Mr. Rebelo telling him that his parents and two pit bull terriers were in the house, although Officer Harris gave that information to Detective Balint, who was at 20 Cayuga executing the search warrants. Officer Harris was not questioned about her source of this information. It may be that she received this information directly from Mr. Rebelo or his girlfriend, overheard Mr. Rebelo tell Officer Small, or received that information from Officer Small. Officer Small may simply have forgotten that Mr. Rebelo told him.

[76] Officer Small testified that he prepared his notes about the conversation he had with Mr. Rebelo five hours after it had occurred. The search warrants had been executed, and the debrief meeting had been held. At that time, he did not recall Mr. Rebelo telling him that his parents and two dogs were in the house. This omission does not cause me to doubt the overall accuracy of Officer Small’s recollection of what Mr. Rebelo said to him.

[77] Finally, Mr. Dos Santos pointed out that Officer Small’s notes about the utterances were made after the debrief meeting when Officer Small knew what had been discovered at Mr. Rebelo’s home. Based on Officer Harris’s evidence, Officer Small did not know that cocaine had been discovered at 20 Cayuga when he was at the restaurant with Mr. Rebelo.

[78] Officer Harris testified that Detective Balint told her only that marijuana had been seized at Mr. Rebelo’s home, and that Mr. Rebelo could be arrested for possession of marijuana for the purpose of trafficking. Officer Small testified that Officer Harris told him that cocaine had been seized and he therefore arrested Mr. Rebelo for possession of cocaine for the purpose of trafficking. Detective Balint testified that he informed Officer Harris that cocaine and marijuana had been seized at the residence and that Mr. Rebelo should be arrested for possession of both drugs for the purpose of trafficking. I find that Detective Balint told Officer Harris that cocaine had been seized at Mr. Rebelo’s residence, and that Officer Harris did not recall that detail when she prepared her notes four or five hours later.

[79] I accept Officer Small’s evidence that Mr. Rebelo told him that the drugs found at 20 Cayuga were his. His evidence made sense. When Mr. Rebelo was initially arrested he denied having any drugs in his house other than a small bag of marijuana. Mr. Rebelo continued to ask about the search warrant process and a few moments later in response to a question from Officer Small, he said that he had one or two pounds of marijuana in the garage. Mr. Rebelo continued to ask questions about the search warrant. He appeared nervous, was sweating, breathing heavily, and rocking back and forth. When Officer Small eventually told him that cocaine had been discovered he acknowledged that he had lied and that the drugs found were his.

Evidence of Edmundo Rebelo

[80] Edmundo Rebelo, Mr. Rebelo’s father, testified that he and Mr. Rebelo jointly purchased the home at 20 Cayuga Avenue around 2008. Although Mr. Rebelo did not contribute to the purchase price, he gave his father between $300 and $500 each week to pay the mortgage. They also split the bills for the house, each paying around $200 or $300 a month.

[81] Mr. Rebelo Sr. testified generally about Mr. Rebelo’s financial circumstances and the use of the garage at 20 Cayuga Avenue.

[82] He testified that Mr. Rebelo had worked as a contract ironworker for ten years. He earned between $900 and $1,000 a week when he worked 40 hours. Mr. Rebelo sought cash work from his friends when there was a gap between contracts.

[83] He also testified that Mr. Rebelo used the garage to park his car and to hang out with his friends after work. Mr. Rebelo was interested in physical fitness. He worked out in the garage and watched soccer games on the television in the garage. Mr. Rebelo Sr. and his wife also used the garage to play with their grandchildren. His grandchildren’s bicycles were stored there. Water, soft drinks, and popsicles were stored in the refrigerator in the garage.

[84] Mr. Rebelo Sr. denied knowing anything about the drugs in the garage. He did not know who owned the coffee grinder, the digital scales, the grey duffle bag, the press, or the tin of Maxwell House coffee that was found in the refrigerator. He testified that he saw a tin that looked like the Maxwell House coffee tin in the refrigerator a few days before the police executed the search warrants.

[85] Mr. Rebelo Sr. testified that he owned the air pistols that were found in the overhead storage cupboard. He said that he had purchased them many years ago and hid them because he did not want his son to have access to them.

[86] He also testified that Mr. Rebelo’s friends met Mr. Rebelo in the garage after work. Sometimes, his friends would be in the garage before Mr. Rebelo arrived home. Mr. Rebelo Sr. had seen his friends in the garage when Mr. Rebelo was not there and had asked them what they were doing there. They told him that they were waiting for Mr. Rebelo. He testified that he would investigate if he knew someone was in the garage without Mr. Rebelo.

[87] I do not accept Mr. Rebelo Sr.’s evidence. It was internally inconsistent on a number of points. He testified that he was sure that the drugs were not Mr. Rebelo’s because Mr. Rebelo worked every day. However, he also testified that the amount of money Mr. Rebelo contributed to the household depended on whether he had worked a full week. He denied telling the police that Mr. Rebelo hung out in the garage with his friends despite his signed statement to the police to the contrary. He was inconsistent about the number of times he saw Mr. Rebelo’s friends in the garage without Mr. Rebelo. In examination in chief he said that they were there almost every day. In cross-examination he said that it happened two or three times.

[88] He testified that there was a keypad entrance to the garage located to the left of the door. None of the officers had noticed the keypad. When Mr. Price asked Mr. Rebelo Sr. if he would see the keypad if he drove there at lunch, Mr. Rebelo Sr. did not reply directly, but answered that he put a new motor in two months ago.

[89] Finally, I do not accept Mr. Rebelo Sr.’s evidence that he owned the air pistols that were hidden in the overhead storage cupboard. He was unable to recall where he had hidden them and was unsure whether the pistols seized and photographed by the police were his. It does not make sense that he hid them from Mr. Rebelo, who was an adult at the time they purchased the house together.

[90] Although I do not accept Mr. Rebelo Sr.’s evidence in its entirety, I am mindful that it can still raise a reasonable doubt about the guilt of Mr. Rebelo when I consider the evidence as a whole. R. v. W.D., [1991] 1 S.C.R. 742, 1991 SCC 93.

Analysis

[91] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

[92] The first is that the Crown must prove beyond a reasonable doubt that Mr. Rebelo is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that Mr. Rebelo is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

[93] The second is the presumption of innocence. This presumption stays with Mr. Rebelo throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged. The presumption of innocence also means that he does not have to testify, present evidence, or prove anything in this case. Mr. Rebelo does not have to prove that he is innocent of these crimes.

[94] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

[95] The issue in dispute in this case is whether the Crown has proved the element of possession beyond a reasonable doubt. There is no dispute between the parties that the 715 grams of marijuana found in the duffle bag in the garage and the 407 grams of cocaine found in the garage were possessed for the purpose of trafficking.

[96] All three forms of possession defined in s. 4(3) of the Criminal Code are in issue in this case: personal possession, joint possession and constructive possession. Proof of possession, personal, joint, or constructive, requires the Crown to prove beyond a reasonable doubt that Mr. Rebelo had both knowledge and control of the marijuana and the cocaine discovered in the garage. R. v. Terrence, [1983] 1 S.C.R. 357, 1983 SCC 51; R. v. Escoffery, [1996] O.J. No. 1106 (C.A.), 1996 ONCA 35; R. v. Pham, [2005] O.J. No. 5127 (C.A.), 2005 ONCA 44671 at paras. 15 & 16. For the purpose of constructive possession, the right to grant or withhold consent is sufficient to prove control. R. v. Savory, [1996] O.J. No. 3811 (C.A.), 1996 ONCA 2001 at para. 7. In the case of joint possession, Mr. Rebelo’s consent must also be established. Criminal Code, s. 4(3)(b).

[97] Knowledge and control may be established by either direct or circumstantial evidence. In this case there is both direct evidence by way of Mr. Rebelo’s utterances to Officer Small and circumstantial evidence.

[98] In assessing the circumstantial evidence, I bear in mind that if there are reasonable inferences that arise from all of the evidence other than the guilt of Mr. Rebelo, the Crown will have failed to have met its burden to prove the case beyond a reasonable doubt. R. v. Villaroman, 2016 SCC 33 at para. 35. The court is required to consider the entire body of evidence rather than scrutinize each piece in isolation to determine whether there is a reasonable inference that can be drawn that is inconsistent with the guilt of Mr. Rebelo. R. v. Medina, 2010 ONCA 1416 at para. 4.

[99] Mr. Dos Santos argued that the court ought to have serious concerns about Mr. Rebelo’s knowledge and control of the drugs in the garage on the basis of the evidence presented. He pointed to the fact that numerous people had access to the garage including Mr. Rebelo’s parents, siblings, nephews and nieces. In addition, others had access to the garage through the keypad as described by Mr. Rebelo’s father. And finally when police entered the garage to search it the back door was ajar. In Mr. Dos Santos’ submission, if Mr. Rebelo had personal or joint possession of the drugs or had been entrusted with them by someone else, one would expect to find a greater degree of security around the garage.

[100] After considering the evidence as a whole I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Rebelo had knowledge and control of the marijuana and cocaine found in the garage at 20 Cayuga Avenue. In my view there is no other reasonable inference that can be drawn from the evidence. I base that finding on the following evidence.

[101] Mr. Rebelo’s statement to Officer Small that the drugs located at 20 Cayuga Avenue were his.

[102] Mr. Rebelo had the ability to, and did, exercise control over the garage. He parked his car in it, he was able to operate the door from the laneway with a remote control, he had a key that unlocked the back door, he stored his things in there such as his work boots and hardhat, he exercised in it, he stored beer in the refrigerator in it, he decorated it with posters, he had the television cable installed in it, and he hung out with his friends in it.

[103] There was a strong smell of marijuana in the garage when the police entered it. A coffee grinder with marijuana residue in it was in plain view on the workbench in the garage. It is conceded by Mr. Rebelo that he was in joint possession of the marijuana in the grinder with his friends who hung out with him in the garage.

[104] A debt list with the words “dope” and “weed” written on it was in plain view on the workbench. This is a very valuable document for someone engaged in the business of selling drugs and it is unlikely to have been left in open view in Mr. Rebelo’s space by someone other than Mr. Rebelo or someone with the knowledge and consent of Mr. Rebelo.

[105] Mr. Rebelo was observed engaging in three hand-to-hand drug transactions; two on September 26 and one on September 27. Although there is no evidence about what drug was exchanged in these transactions, this evidence supports the Crown’s theory that Mr. Rebelo was trafficking in drugs and is some evidence that Mr. Rebelo was in possession of drugs for the purpose of trafficking. R. v. Pham, supra. at para. 20; R. v. McFarlane, 2016 ONCA 158 at para. 5.

[106] The drugs and drug trafficking paraphernalia were concealed in a number of different locations within the garage. The largest quantity of marijuana was located in an overhead cupboard, which was not easily accessible; smaller amounts were more easily accessible on top of the refrigerator, and on a shelf above the refrigerator. The marijuana found in Mr. Rebelo’s bedroom, on top of the refrigerator in the garage, and on the shelf above the refrigerator, was similarly packaged. It was loosely contained in clear plastic, knotted on the top, giving rise to an inference that the same person had packaged it.

[107] Cocaine was found inside the refrigerator, and inside a box of garbage bags on a shelf above the refrigerator. One bag containing 8.26 grams of marijuana was located on the shelf directly behind the box of garbage bags. Digital scales were discovered on top of the refrigerator and inside a chamois mitt that was on a shelf above the refrigerator. Also inside the chamois mitt were hundreds of very small Ziploc bags.

[108] The drugs were valuable. As I indicated, the marijuana was worth between $2,700 and $7,200. The cocaine was worth between $18,700 and $44,400.

[109] When I consider the value of the drugs together with the fact that they were secreted in a number of different places within the garage, a space controlled by Mr. Rebelo, it is not a reasonable inference that some other person stored them there without Mr. Rebelo’s knowledge and consent. It is a matter of logic and human experience that people do not hide their valuable assets on other people’s property unless they trust that the other person will take care of them. R. v. Bonilla-Perez, 2016 ONCA 535 at para. 16; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.); R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.); R. v. Duvivier, 2010 ONCA 136. It is even more implausible that the same person would hide not only their valuable drugs but also the tools of their drug business and their accounting records (the debt list) in Mr. Rebelo’s garage without his knowledge and consent.

[110] In addition, Mr. Rebelo’s father could at any time appear in the garage unexpectedly if Mr. Rebelo was not present, making it very risky for anyone, other than Mr. Rebelo, to use the garage as a place to stash drugs and drug paraphernalia without Mr. Rebelo’s knowledge and consent.

[111] I am satisfied beyond a reasonable doubt on the whole of the evidence, both circumstantial and direct, that Mr. Rebelo possessed the cocaine and the marijuana for the purpose of trafficking and I therefore find him guilty of counts 1 and 2.

The Cash in Mr. Rebelo’s Bedroom

[112] Mr. Rebelo is also charged with possession of the proceeds of crime. Officer Magee testified that he seized a total of $7,725 in Canadian currency from Mr. Rebelo’s dresser. On top of the dresser, a large number of loose bills were located in a basket, in a Nokia box, and in an Ed Hardy tubular container. There were also two wads of bills on top of the dresser and another wad of bills in the top dresser drawer.

[113] Mr. Dos Santos submitted that Mr. Rebelo Sr.’s evidence that Mr. Rebelo worked at cash jobs is a reasonable explanation for his possession of this quantity of cash. I do not agree. Mr. Rebelo Sr. testified that Mr. Rebelo was an iron worker who worked on different contracts. When there was a gap between contracts, Mr. Rebelo sought out cash work from his friends. There is no evidence that Mr. Rebelo earned all of his income in cash.

[114] Mr. Rebelo earned between $900 and $1,000 when he worked a 40-hour week. He earned $600 or $700 if he worked fewer hours. The amount of money he gave his father each week for the mortgage varied depending on the number of hours Mr. Rebelo had worked. If he worked the whole week, he gave his father $500; if not, he gave him $300. Mr. Rebelo also split the monthly household expenses with his father, which amounted to $200 or $300.

[115] Mr. Rebelo Sr. also testified that Mr. Rebelo paid for his own car expenses, his clothing and cell phone. Mr. Rebelo did not borrow money from his father.

[116] The cash seized from Mr. Rebelo’s bedroom is a very substantial sum given Mr. Rebelo’s income and expenses. When I consider this together with my finding that Mr. Rebelo was in possession of drugs valued between $21,000 and $51,000 and that he was observed engaging in hand-to-hand drug transactions, I am satisfied beyond a reasonable doubt that all or part of the $7,725 seized from Mr. Rebelo’s dresser was the proceeds of crime. I therefore find Mr. Rebelo guilty of count 3.

Corrick J. Released: September 30, 2016