R. v. Ganno Abdella, 2016 ONSC 6548

CITATION: R. v. Ganno Abdella, 2016 ONSC 6548

COURT FILE NO.: CR-16-10000437

DATE: 20161021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GANNO ABDELLA

Applicant

Glenn Brotherston, for the Crown

Ryan Handlarski, for the Applicant

HEARD: October 10 - 19, 2016

REASONS FOR JUDGMENT

A.J. O’Marra J. (orally)

1Ganno Abdella is charged with trafficking heroin contrary to s. 5(1) of the Controlled Drugs and Substances Act and possession of proceeds of crime contrary to s. 354(b) of the Criminal Code.

2It is alleged that Ganno Abdella sold heroin to Hanad Aden on May 26, 2014 and received $700 in payment.

3Hanad Aden was the target of a Toronto Police Service investigation in which a Part VI wiretap authorization was obtained to intercept his telephone communications. The police believed as a result of a number of intercepted communications, between May 15 and May 26, 2014 that Hanad Aden had arranged a drug transaction on May 26, 2014 with an unknown female to take place in the area of Elm Street and Sherbourne Avenue, north of Bloor Street in the City of Toronto.

4Surveillance was arranged to follow Hanad Aden to the location of the anticipated drug transaction. He was seen to drive his motor vehicle from 47 Trolley Crescent, Toronto in the company of a female passenger, later identified as Stacey Wint, via a circuitous route to the area of Elm Street and Sherbourne Avenue, north of Bloor Street. He stopped his vehicle and parked by the curb facing south toward Bloor Street. He remained parked at that location with Stacey Wint for approximately two minutes. No one was observed by the surveillance officers to get out of the vehicle, enter the vehicle or approach the vehicle.

5Then Mr. Aden drove south to Bloor Street, turned right and proceeded westbound when after a short distance he was seen to pull his vehicle to the north side curb, where an unidentified female, later identified as the accused, walked directly to the rear passenger door and entered into the vehicle. Then Mr. Aden pulled his vehicle away from the curb driving westbound on Bloor St. when he made a sudden U-turn on Bloor Street, to drive eastbound. After a short distance, he pulled again to the curb on the south side of Bloor Street at the intersection of Ted Rogers Way. The female, who entered on the north side of Bloor St., Ms. Abdella, then exited the vehicle and proceeded on foot eastbound across Ted Rogers Way along Bloor Street. She had been in Mr. Aden’s motor vehicle less than 30 seconds.

6Mr. Aden drove southbound on Ted Rogers Way followed by surveillance officers. Other officers who had been observing Mr. Aden’s movements remained on Bloor Street and immediately arrested Ms. Abdella. She was found carrying a cellular phone and $700 CDN currency.

7Mr. Aden was stopped subsequently on Bay Street where he and his passenger, Stacey Wint, were arrested. A search of Hanad Aden resulted in the police finding a clear plastic bag of 6.32 grams of heroin hidden in his sock, 0.46 grams of cocaine and $660 in Canadian currency.

8The Crown’s case against the accused is based wholly on circumstantial evidence of the intercepted communications involving Hanad Aden from May 15, 2014 to May 26, 2014 with an unknown female in which coded language was used to arrange transactions involving the purchase of drugs, as well the observations made by the surveillance officers leading to the meeting of Hanad Aden and Ganno Abdella in his motor vehicle May 26, after which he was found in possession of 6.32 grams of heroin and she was in possession of $700.

Circumstantial Evidence

9For the Crown to prove an accused guilty in a case involving 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 is that the accused is guilty: R. v. Ukwuaba, 2015 ONSC 2953 at para. 97; R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at paras. 33 – 34; and R. v. Villaromann, 2016 SCC 33, [2016] S.C.J. No 33, para. 17.

10When considering whether circumstantial evidence is sufficient to establish an offence, the trier of fact must be satisfied not only that the circumstances are consistent with the accused having committed the act, but that the facts are inconsistent with any other rational conclusion.

11The issue at the end of a trial is not whether guilt is the most reasonable inference, but whether the Crown has proved beyond a reasonable doubt that guilt is the only reasonable inference. Where there are reasonable alternate explanations or reasonable inferences that can be drawn from the circumstantial evidence, there will be reasonable doubt.

12It is the position of the defence that in considering all of the evidence, and in particular the lack of evidence, there are a number of other reasonable inferences and explanations that can be drawn other than guilt and as a result the Crown has not met the standard of proof beyond a reasonable doubt in this case. There are “other reasonable possibilities” which are inconsistent with guilt.

13In R. v. Villaroman, supra at para. 37 and following, the Supreme Court stated:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d. 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 2013 B.C.C. 28, 335 B.C.A.C. 11 at para. 20; R. v. Mitchell, [2008] Q.C.A. 394 (Aust. LII), at para. 35.

I agree with the appellant that the Crown thus may need to negative these reasonable possibilities but certainly does not need to “negative every possible conjecture no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between “plausible theory” and “speculation” is not always easy to draw but the basic question is whether the circumstantial evidence, viewed logically in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

14Further, in Villaroman, the court noted at para. 41 to 42 that “to justify a conviction, the circumstantial evidence, assessed in light of human experience should be such that it excludes any other reasonable alternative – a helpful way of describing the line between plausible theories and speculation”….. and that “circumstantial evidence does not have to totally exclude other conceivable inferences”-- the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable and that alternative inferences must be reasonable, not just possible”.

Case Overview

15Let me first outline the evidence tendered by the Crown.

16The Crown introduced nine intercepted communications from Mr. Aden’s cell phone, number 416-606-9002 entered as Exhibit No. 2 Tabs 1-9, May 14 to May 26, 2014.

17Detective Daniel Hutchings, Supervisor of the Toronto Police Service Drug Squad East with more than 15 years’ experience as a drug investigator and undercover officer was qualified as an expert to comment on the chain of distribution, pricing, sale methodology, consumption, preparation, packaging, purity, paraphernalia and modus operandi of street level to moderate level of trafficking of heroin and powder and crack cocaine, and the use of guarded or coded language by drug traffickers in relation to drug trafficking. Detective Hutchings reviewed the nine intercepts and detailed what he described from his experience as the “guarded and coded language” used by Hanad Aden and the unidentified female caller.

Intercepted Telephone Calls

18Call One - May 15, 2014 at 10:57 a.m.: In the call Aden tells the unidentified female that he does not want to give his name and that she can just call him ‘Webs’ or something, but not Boozy, which was ‘hot’. Det. Hutchings indicated that ‘hot’ meant known to the police. The female asked whether he was the same person that she talked to on the phone “with him yesterday”, referring to someone else, to confirm who she was talking to. Aden indicated that he wanted “seven”.

19Detective Hutchings indicated that the exchange between Aden and the caller was initially to establish trust and that use of the word “seven” for what Aden wanted, without more, could have referred to the quantity of the drug being sought or its value.

20Call Two - May 21, 2014 at 1:31 p.m.: Aden called the same number again in which he and the unknown female arranged to meet at 2:30 p.m. initially at the Eatons Centre, by the Subway, Food Smart, which was changed by Aden to the Bus Terminal.

21In the call, Aden asked her “…you know what I wanted right? ... seven of them” to which the female replied “yeah, yeah, yeah, seven, yeah…the usual. Okay”. Aden replied “yeah, the usual”. The call confirmed that Aden and the female had a prior transaction as referenced by use of the term “the usual” by the unknown female.

22Call Three - May 21, 2014 at 2:34 p.m.: Aden received an incoming text message from the unknown female stating, “I’m here”, referring to the arranged meeting for “seven”, “the usual”.

23Call Four - May 21, 2014 at 2:46 p.m.: 12 minutes after call no. 3 in which the unknown female told Aden that she had left after “waiting for you”. She indicated, “I was calling, calling, I’m like okay, I need… I’m outta here.” Aden explained that he was having difficulty with his telephone as it had died. She asked if he wanted to pick her up “…’cause I have stuff on me too”. Detective Hutchings indicated that reference to “stuff” referred to the drugs. Then Aden arranged to pick her up at Church and Wellesley.

24Call Five - May 21, 2014 at 3:00 p.m.: Aden called the unknown female to ask her where she would be waiting.

25Call Six - May 25, 2014 at 4:35 p.m.: Aden called the unknown female to arrange another transaction, stating, “I need … I need um… the same thing”. The unknown female indicated that she was at Davenport but did not have a vehicle and she did not have “the stuff”. She had to call “the person” which meant she did not have the drugs and that she had to go to somebody else in order to get them to provide them to Aden.

26Call Seven - May 26, 2014 at 11:40 a.m.: Aden called the unknown female asking “what’s up” in reference to his request the day before for “the same thing”. Her response was “….you know the problem is I don’t have the key to the other house and someone else has the key to…to the other place and the stuff is in there. I called him yesterday um…he said he wasn’t around.”

27Detective Hutchings indicated that the female was telling Aden that she had not been able to get access to the drugs because the person who had the key to the stash house was not available. Then the female said that she would call “the person” to see if he could give her the key to get the stuff/drugs at the stash house.

28Call Eight - May 26, 2014 at 1:15 p.m.: The unknown female called Aden to tell him, “okay I am about to meet up with the person, I’m going to go to the house and pick it up and then I’ll call you.”

29Call Nine - May 26, 2014 at 2:58 p.m.: The unknown female called Aden and stated, “I have it for you”. She asked him where he wanted to meet but indicated that she had to do “my last thing” in the area of Greenwood and Danforth, she had “a chop there”, she had to go there and then come back before they could meet.

30Detective Hutchings indicated that the reference to “my last thing” and “a chop” referred to another drug transaction she had to take care of before she would be able to meet Aden.

31In the last call, Aden suggested that after she did that they meet, “on Bloor north of Sherbourne…there’s like a little area like Elm… like one street and something like that”. She stated, “I’ll call you when I get there then, when I’m on my way there.” No specific time was stated during that call for the meeting to occur.

32Det. Hutchings testified that 6.32 grams of heroin in the possession of Aden would sell for approximately $900 to 1000, however, it could sell for more or less by a couple of hundred dollars depending on the quality, the relationship between the seller and the buyer insofar as it may be a continuing arrangement the dealer seeks to maintain, or because of the price paid by the dealer to acquire the drug. That quantity could sell for $700.00. Also, the quantity was an amount beyond that of a user, but an amount a mid-level dealer would sell to a street-level dealer.

Surveillance Observations and Arrests

33After Call Eight at 1:15 p.m., a surveillance team from the Major Crimes Task Force was directed to follow Aden. Detective John Dunlop the lead of the surveillance team was provided a description, a photo of Aden and a description of his car he operated. He had information that Aden had been in contact with an unknown female dealer from whom he was going to purchase a large amount of drugs. Detective Hutchings indicated that “seven”, which Aden was ordering could have referred to grams or ounces of the drug, whatever the drug may be.

34Detective Dunlop briefed the surveillance team that Aden had been in contact with an unknown female dealer to purchase the drugs and once they observed Aden meet the dealer and the transaction was completed they would be arrested for trafficking.

35In addition to Detective Dunlop, the team consisted of Detective Constables Winter, Whitley, Neath and Detective Ryan – all operating unmarked vehicles. During the surveillance, Detective Dunlop was in contact with officers in the wire room and as he received information from them it was passed to the team.

36Detective Dunlop received information that Aden’s motor vehicle had been located at 47 Trolley Crescent in Toronto. At 2:25 p.m. the surveillance team attended that location and set up to await Aden’s departure and follow him. Shortly after Call Nine was intercepted at approximately 3:00 p.m. they learned that the unknown female told Aden she had “it” for him and that she would be in the McDonald’s plaza with the CIBC on Bloor Street, a five minute walk north of Isabella and she would call him “when I get there then, when I’m on my way there.”

37The surveillance team continued to watch 47 Trolley Crescent and at 4:24 p.m. Aden was seen to drive from the building in his vehicle with an unknown female passenger in the front seat, later identified as Stacey Wint.

38The surveillance team members followed Aden, as he drove an indirect “circuitous route” to the area of Elm and Sherbourne. At one point during the trip, he pulled into the entrance to the Evergreen Brickworks and made a U-turn. He pulled to the southbound curb of Sherbourne Avenue, south of Elm at Rachel Street, just north of Bloor Street at 4:42 p.m. Detective Constable Neath following in one of the surveillance vehicles passed Aden’s vehicle as it came to a stop at the curb and he pulled to the curb approximately 6 to 7 car lengths in front. Neath had an unobstructed view of the front of Aden’s vehicle during the two minutes it remained there before Aden drove southbound to Bloor St.

39Detective Ryan in another surveillance vehicle had placed his vehicle approximately 50 to 60 metres to the rear of Aden’s vehicle about one minute after it stopped on Sherbourne, where he kept Aden’s vehicle under observation until it was pulled away from the curb and driven southbound to Bloor Street.

40Both officers, with unobstructed views of the Aden vehicle, did not see anyone exit, enter or approach the vehicle or anything being removed from or placed into the vehicle while stopped at the location.

41At 4:44 p.m. Aden’s vehicle was driven southbound and turned right, heading westbound on Bloor St. At 4:46 p.m. Aden, moving slowly in heavy traffic pulled his vehicle over to the curb east of Church St. A female, later identified as Ganno Abdella, was seen by Detective Constables Whitley and Winter walk directly to Aden’s vehicle and entered immediately into the rear passenger seat. Detective Constable Winter saw that she had a take-out cup and what appeared to be a wallet in her hand.

42Aden immediately pulled away from the curb entered into the westbound traffic on Bloor as she entered the vehicle and closed the door. However, before reaching Church St. Aden made a sudden U-turn to travel eastbound on Bloor Street. After driving half a block he pulled the vehicle to the south side curb at the intersection of Bloor Street and Ted Rogers Way where Ganno Abdella got out of the car. She had been in Aden’s vehicle for less than 30 seconds having been driven from one side of Bloor Street to the other side.

43Once she was out of the car, Aden turned right and proceeded southbound on Ted Rogers Way out of the area, followed by surveillance officers.

44After Ms. Abdella crossed Ted Rogers Way she continued to walk eastbound on Bloor. Detective Constable Whitley exited his vehicle at 4:48 p.m. and assisted by Det. Ryan, arrested Ms. Abdella. When she was stopped by Whitley she had a bagel and $700 in cash (5 x $100 bills and 4 x $50 bills) in her left hand and a cell phone and keys in her right hand.

45Later, on Bay St., Aden’s vehicle was stopped by police. Aden and Stacey Wint were arrested for trafficking. He was found to be in possession of 6.32 grams of heroin, hidden in his sock, 0.46 grams of cocaine, and $660 cash.

46The defence contends that there are a number of reasonable inferences that can be drawn from all of the evidence other than guilt, and as a result the Crown’s evidence does not meet the standard of proof of beyond a reasonable doubt. Counsel submits that there is a gap in the evidence which breaks the logical chain of reasoning that the accused is the unknown female heard on the intercepts and from this lack of evidence leads to other reasonable explanations for her to have entered Aden’s vehicle, other than to commit a drug transaction. These “other plausible theories” and “other reasonable possibilities” are inconsistent with guilt”.

47There is no evidence that the accused is the unknown female on the nine intercepted calls. No voice identification has been provided. There is no information as to the description of the unidentified female on the telephone calls. There is no further communication intercepted by the police that changed the location – Ms. Abdella met Aden on Bloor Street, not at Elm and Sherbourne.

48The last intercepted call occurred at 3:00 p.m., yet Aden attended to the area of Elm and Sherbourne, the location identified in that call one hour and 46 minutes later, where he sat in his motor vehicle with Stacey Wint for approximately two minutes. No further communications were intercepted on Mr. Aden’s telephones to establish a time or alternate location. The gap in the evidence counsel contends is the lack of any intercepted call or calls after 3:00 p.m. to set a time to meet or to change the location of the transaction from the area of Elm and Sherbourne to Bloor St. Counsel argues that there being no evidence of any other communication, there is a gap in the Crown’s case which cannot be bridged

49The Crown submits that other means of communication must have been utilized, and which can be inferred to have occurred from the series of calls when earlier drug transactions were arranged between Aden and the unknown female.

50Aden and the female caller had previous dealings and meetings as reflected in the Calls One through Six. Further, the absence of a communication as to the time for the meeting and change of location does not mean that there had not been an alternate means of communication. Indeed, the intercepted calls reflect that an alternate means of communication was available and had been used previously. An earlier sale had been arranged without an intercepted call after May 15 where Aden said he wanted “seven”. The second call made on May 21 reflects that the transaction had been arranged and completed without further intercepts on his telephone. After he said he wanted “seven” on the May 21 call, the female confirmed, “the usual”, to which he said “yeah”. The use of the phrase “the usual” conveys she knew what he wanted because he had ordered it before.

51The telephone call at 3:00 p.m. on May 26 set up a meeting between Aden and the female dealer. Aden and a female met in his car in the area and parted less than 30 seconds later after what could be inferred as another evasive maneuver as he had used earlier in driving a circuitous route to the area – a sudden U-turn. Aden was in possession of 6.32 grams of heroin and Abdella had $700.00.

52In my view, it is reasonable to infer that some form of communication occurred in order to set the timing of the meeting, not only from the evidence that Aden and the female dealer had arranged and completed a transaction for “the usual” without intercepted calls in which the details as to when and where were discussed, but also from the evidence that Aden in fact drove to the area discussed in the May 26, 2014 3:00 p.m. call.

53Counsel suggested that Aden stopped on Sherbourne to make a “drop”, a practice sometimes used by drug dealers. A surreptitious means of effecting a drug transaction. The subsequent attendance of Ms. Abdella into his motor vehicle on Bloor St. had nothing to do with the transaction.

54I do not consider the drop theory having occurred on Sherbourne, north of Bloor, as proffered by the defence as a plausible theory or reasonable inference from the evidence.

55Firstly, it is clear in the intercepted communications that Aden is the purchaser, he is the one seeking “seven”, “the usual”, as he had in the past.

56Secondly, the female with whom he is communicating, with who he was by then acquainted, having met previously, was the one that provided the “stuff” to him. It is reasonable to infer from the intercepted calls that he was not delivering, he was receiving.

57Thirdly, and of greater significance, after Aden pulled to the curb on Sherbourne, north of Bloor and sat in his car with Stacey Wint under continuous police surveillance, no one exited, entered or approached the vehicle. Nothing was seen being removed or placed into the vehicle. The obvious focus of the police officers looking for a drug transaction to occur. I do not consider it a reasonable suggestion that something was picked up or left in the gutter at the curb unseen.

58Defence contends that the other reasonable possibilities inconsistent with guilt, which the Crown must negative in this case, are:

1. The accused was a friend of Wint and entered the vehicle to get a bagel from her.

2. The accused picked up $700 from Stacey Wint.

3. The accused got the keys from Aden or Wint, which she was carrying at the time of her arrest, but not seen to have been carrying when she entered the car.

4. Aden owed her $700 and she went into his car to obtain it. There is no direct evidence linking the money she had with the drugs he had.

5. The accused carried the $700 into the car, but unseen by the surveillance officer.

6. No hand to hand transaction was observed and Aden had the drugs already in his sock when he left the Trolley Street address.

7. Stacey Wint was the trafficker, the unknown female on the intercepts.

59In terms of Stacey Wint being the female on the intercepted telephone calls, I note that Aden was seen to leave Trolley Crescent with her as his passenger and after driving a circuitous route stopped in the area as discussed in the last telephone call where the deal was to occur. The female Aden was meeting was supplying the drugs. If Stacey Wint was the trafficker, the female voice on the intercepted telephone calls, why would Aden leave Trolley Crescent in her company to travel to another location in order to effect the transaction? In my view, this possibility is inconsistent with the evidence. It and the others suggested by the defence are no more than speculative theories.

60I do not accept the alternative inferences suggested by the defence as “other plausible theories” or “other reasonable possibilities” based on logic and experience applied to the evidence, or absence of evidence.

61In R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011 the Ontario Court of Appeal in considering a case of circumstantial evidence, noted at para. 13 that it is the cumulative effect of all the evidence that must satisfy the standard of proof required by the Crown:

Individual items of evidence are not to be examined separately and in isolation, then cast aside if the alternate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.) at p. 76.

62Circumstantial evidence must not be examined and evaluated in a piecemeal fashion, but rather cumulatively by way of the application of logic, common sense and experience to the evidence which engages the consideration of inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence. The whole of the evidence must be considered in a case involving circumstantial evidence: R. v. Ukwuaba 2015 ONSC 2953 at para. 98; R. v. Hall, 2015 ONCA 198 at paras. 5 - 6.

63Here, it is reasonable to infer from the individual items, which I consider cumulatively:

1. The female on the intercepted calls is a dealer providing the drugs to Aden’s order.

2. There was a pre-existing relationship between Aden and the female dealer, from at least May 15, 2014 to supply him with “the stuff” on May 26, 2014.

3. Aden and the female dealer had arranged to meet in the past with respect to at least another transaction before May 21, without an intercepted communication that detailed the arrangements.

4. Aden and the female on the intercepts know each other having met before for an earlier transaction.

5. In the calls of May 26, an arrangement was made for Aden to meet the female dealer in the area of Sherbourne, north of Bloor Street.

6. In Call Nine, the female dealer Aden will be meeting told him she would be coming up from the area of Isabella Street to the location on Sherbourne and Bloor.

7. That afternoon Aden drove his motor vehicle via a circuitous route stopping in the area on Sherbourne, north of Bloor, where he waited for a couple of minutes and then proceeded to Bloor St. westbound. His seller had left the designated area of a transaction before, as seen in Call Four, May 21.

8. Aden drove his vehicle a short distance on Bloor and stopped his motor vehicle, not far from the designated location and picked up Ganno Abdella. He made a U-turn across Bloor St., an evasive maneuver similar to one he had made before at the entrance to the Evergreen Brickworks on his circuitous route to the area of the transaction from Trolley Crescent. Within 30 seconds of entering the vehicle, the accused exited it on the other side of Bloor Street at Ted Rogers Way, a short distance opposite to where she had been picked up on the north side of Bloor Street.

9. The amount that Aden wanted was “seven”, “the usual”. On Aden’s arrest, he had 6.32 grams of heroin and Ganno Abdella had $700 in her hand when she was arrested. He had a quantity of heroin worth the approximate value of the cash in the possession of Abdella. A quantity of heroin that could sell for $700 between traffickers.

64In considering all of the evidence cumulatively, I am satisfied beyond a reasonable doubt the only rational inference that can be drawn from the circumstantial evidence is that the accused trafficked 6.32 grams of heroin to Aden and received $700. in payment.

65In the result, Ganno Abdella is found guilty of trafficking heroin and possession of proceeds of crime.

A.J. O’Marra J.

Delivered Orally: October 21, 2016