Her Majesty the Queen v. Mizanur Rahman

COURT FILE NO.: 11306 DATE: 2017/03/09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Mizanur Rahman, Defendant

COUNSEL: D. Moffat, for the Crown C. McLean, for the Defendant

HEARD: January 23, 24, 25, 26 and 27, 2017

Justice M.A. Garson (ORALLY)

Introduction

[1] The defendant, Mizanur Rahman, stands charged with one count of possession of cocaine for the purposes of trafficking and one count of possession of marijuana for the purposes of trafficking, contrary to s. 5(3) and 5(4) of the Controlled Drugs and Substances Act (CDSA).

[2] The defendant was arrested on February 24, 2011, after police surveillance. A search of the motor vehicle he was operating yielded 8.2 grams of powder cocaine and 26 grams of marijuana bud.

The Governing Law

[3] The defendant is presumed innocent until the Crown proves beyond a reasonable doubt his guilt with respect to these offences. This is a heavy burden of proof that rests with the Crown and it is not enough that the Crown prove probable or likely guilt: see R. v. Lifchus, [1997] 3 S.C.R. 320.

[4] Additionally, because the defendant testified, I must address the three-part test set out by the Supreme Court of Canada in R. v. W.(D)., [1991] 1 S.C.R. 742, as follows:

(i) If I believe the testimony of the defendant that he did not commit these offences, I must find him not guilty;

(ii) If I disbelieve the testimony of the defendant but his testimony leaves me with a reasonable doubt as to his guilt, I must find him not guilty; and

(iii) If I disbelieve the testimony of the defendant and such testimony does not leave me with a reasonable doubt, I may only find him guilty if the evidence that I do accept establish his guilt for that offence beyond a reasonable doubt.

[5] In dealing with the essential elements for the offences of possession for the purposes of trafficking, I must be satisfied that the defendant was in possession of the scheduled drug, knew that the substance was a scheduled drug and possessed the drug for the purposes of trafficking in it.

Admissions

[6] The defendant admits the nature and quantity of the drugs seized, namely 8.2 grams of cocaine and 26 grams of marijuana, and further admits the continuity in the handling and analysis of the drugs.

Evidence for the Crown

[7] Officers Valiquette, Churney, and Martin conducted surveillance at the American Motel (“the motel”) on Dundas Street, London in the early evening hours of September 24, 2010.

[8] At 7:30 p.m., police observed a red Chevy Trailblazer, licence number BJCR 257 (“the vehicle”) attend at the motel and drop off an unknown male.

[9] The vehicle next proceeds to a nearby Tim Hortons parking lot and then pulls into a YMCA parking lot where an unknown male enters the vehicle for a short period of time.

[10] The vehicle is next observed travelling to 609 Clarke Road (Sweet City Massage Parlor). No one is observed entering or exiting the vehicle.

[11] Surveillance is lost on the vehicle for a short time and the vehicle is next observed at a residence at 1369 Trafalgar Road where the defendant is observed to exit and re-enter the vehicle. This residential address is known to the police, through previous dealings and intelligence, as a location where drug transactions have taken place in the past.

[12] The vehicle is next followed to another Tim Hortons (Highbury and Cheapside) and is seen backing into a parking space to be able to observe passing traffic. Police describe this type of parking as a “heat check” or counter surveillance by the driver to ensure he is not being followed by police.

[13] The vehicle next proceeds to a nearby Petro Canada station (Highbury and Huron) and an unknown person is seen approaching the driver’s door for less than a minute. The police believe this type of short meeting is consistent with a drug transaction.

[14] The vehicle then travels to a Mac’s Milk store (Oxford and Wharncliffe) and an unknown male approaches the driver’s side of the vehicle for less than a minute. The police again believe this type of short meeting is consistent with a drug transaction.

[15] Surveillance is terminated at this point. As the result of vehicle searches and licence plate queries, police receive and view a driver’s licence photo of the defendant and are satisfied that the person operating the vehicle is the defendant.

[16] Repeated attempts by police to locate the vehicle at later dates at what they believe is the residence of the defendant (210 Doon Drive, London) are unsuccessful.

[17] The vehicle is next seen by police on February 11, 2011 at Sarnia Road and Wonderland Road. On this occasion, the defendant is a passenger in the vehicle and the driver is determined to be Savanah Alport (now deceased).

[18] The vehicle is then seen parked on Dundas Street across the street from the London Police station. Both the driver and the passenger exit the vehicle and enter the police station at 1:52 p.m.

[19] The vehicle is next observed at 3:15 p.m. at the Petro Canada on Dundas Street. (at Bonaventure), and five minutes later, the vehicle travels to a doctor’s office driveway on Maitland Street. The vehicle is later followed to an area on Trafalgar Street where it does a U-turn and is later located in the driveway of a house at 2221 Trafalgar Street. Police are familiar with this residence as they had recently executed a search warrant at this residence. No one was seen entering or exiting the vehicle at this location.

[20] The vehicle next pulls into a Tim Hortons parking lot at Clarke Road and Trafalgar Road and the female driver exits the vehicle and goes into Tim Hortons for a brief moment. Less than a minute after the female exits Tim Hortons, a known male crack-addict is also seen leaving Tim Hortons. The police did not observe any interaction between the female driver and the known male person.

[21] The vehicle is next seen on February 24, 2011, parked in front of 210 Doon Drive. Police decide to resume surveillance. The vehicle leaves the residence and heads to the Station Park Hotel on Pall Mall Street. The defendant is seen operating the vehicle and is the sole occupant of the vehicle.

[22] The vehicle is parked outside Station Park Hotel and the defendant enters the hotel lobby. Police temporarily lose sight of the defendant (one – two minutes) and when they enter the lobby note that one of the elevators has stopped on the 9th floor and head to that floor. When the police exit the 9th floor, they observe the defendant standing there. The officer exits and the defendant enters the elevator.

[23] The vehicle then leaves the Station Park Hotel area at 3:16 p.m. and returns to 210 Doon Drive. Shortly thereafter, at 3:29 p.m., the vehicle leaves the residence and goes to 1325 Highbury Avenue (near Fuller). The vehicle parks there and an unknown male approaches the vehicle at 3:49 p.m. on the driver’s side and after a brief meeting, the vehicle leaves at 3:51 p.m.

[24] The vehicle next travels to the London Courthouse and enters into the laneway at the Queens Avenue entrance. At this point, police decide to effect an arrest of the defendant and box in the vehicle for the purposes of arresting the defendant.

[25] The defendant is arrested and searched. A search of his person reveals the following:

(i) a $5 bill and one-half of a $5 bill; and

(ii) 2 parking tickets dated December 16, 2010 and February 14, 2011;

[26] A preliminary search of the vehicle, incident to arrest reveals two clear baggies in the center console of the vehicle, one with a white substance and one with a green substance located beneath the armrest and not in plain view.

[27] The vehicle is later searched at the police station with the assistance of a detection dog and the following items are found in the vehicle:

(i) two jars of baking soda in the rear trunk area;

(ii) a Vitamin E bottle with 70 grams of powder underneath the driver’s seat; and

(iii) a box of clear sandwich bags, box cutters and a utility knife with some powder residue on it (also from the rear of the vehicle).

[28] The defendant was not the registered owner of the vehicle. The vehicle was registered to Natalie Stray (sp.) at an address on Westfield Drive in London. Police did not follow-up with the registered owner of the vehicle.

[29] During all three days of surveillance, police did not observe any hand-to-hand transactions.

[30] None of the unknown males who approached the vehicle were subsequently spoken to by police.

[31] The state of the vehicle at the time of the search was described as “messy” with bags of women’s clothing strewn all over the back of the vehicle.

[32] Forensic testing of the powder found in the Vitamin E bottle turned out to be an unidentifiable white powder (and not cocaine).

[33] An analysis of the LG cell-phone found on the defendant on the day of his arrest was done by Det. Constable Jason Eddy of LPS on the basis of a search warrant authorizing the search.

[34] Detective Eddy extracted some data from the phone and was required to take a number of photographs of text message and cell logs because the software he used could not extract this data into a readable form.

[35] He acknowledged that he could not confirm who was the owner of the phone or who was the specific user of the phone at the time messages were sent or received or calls were made.

[36] Det. Cst. Jeff Ordronneau was qualified as an expert in drug trafficking, including valuation, methods used to traffick and lingo used to sell illicit drugs, specifically marijuana and cocaine.

[37] Det. Ordronneau opined that the 26 grams of marijuana and 8.2 grams of cocaine seized were possessed by the defendant for the purposes of trafficking.

[38] Although the amount of cocaine in and of itself was insufficient to conclude possession for the purposes of trafficking, the officer relied on the following additional evidence to reach his conclusion:

(i) the baggies located in the vehicle, coupled with the fact that they did not appear to be old or to have drugs in them;

(ii) the presence of baking soda in the vehicle, which is often mixed with cocaine and used when cutting cocaine;

(iii) the presence of box cutters in the vehicle (which were contaminated with an unknown white powder) which one often used, in chipping-off small amounts of cocaine from a larger hard ball of cocaine; and

(iv) the presence of an unknown white powder in the Vitamin E bottle located under the driver’s seat of the vehicle which may have been used to cut cocaine.

[39] Similarly, Det. Ordronneau indicated that although the amount of marijuana in and of itself was insufficient to conclude possession for the purposes of trafficking, the presence of the baggies and the contents of a series of sent and received text messages were sufficient to allow him to conclude that the marijuana was possessed for the purposes of trafficking.

[40] More specifically, he relied upon the following series of sent and received text messages on February 22 and 24, 2011:

(i) “Yo I need that right now where are you I need to grab more [1] ” …. “Yo you can’t avoid me today its cheque day I need that now answer your phone” ….“Yo I’m picking up a half I’ll even toss you a ball. [2] Just call me I need that 120” …. “C’mon man its only 120. I seriously need it now. Its cheque week man. Don’t flop on me. I need this badly”.

(ii) “Need any weed outdoor kuch nice” ….

(iii) “I’ll be here in 15 come by” (a response is sent saying “K”) …. Come to my house…. Hey man this is 1.4 get back hear…. Fuck man this is for my boss just bring the weed back see what I mean…. Fuck if I get my hands on you…. You have no idea who you’ve pissed off – shit garbage wrong ginny pig why?””

(iv) “I still have some hard if you want”.

[41] In cross-examination, Det. Ordronneau concedes the amount of marijuana and cocaine seized was consistent with that of a heavy smoker and that no scales or debt lists were located. The officer acknowledged that the baking soda and box cutters were in the rear hatch of the vehicle and not in plain view.

[42] The officer agreed that there appears to only be a single outgoing text message from the phone relating to supplying cocaine (see (iv) above) and that the other messages suggest others are offering to sell the owner or user of the phone marijuana or cocaine.

[43] The officer accepted that other messages on the phone were consistent with more than one user of the phone.

Evidence for the Defendant

Mizanur Rahman

[44] The defendant testified with the assistance of an interpreter. He repeatedly referred to memory problems he has now. In 2010-2011, he ran a cellphone repair and resale business through Kijiji and that business was quite good around this time. He also worked part-time as a cook.

[45] He borrowed a friend’s car (Natalie) on February 24, 2011 to make some deliveries for his cellphone business. He spent the morning making return trips to Lucan to pick-up some items for his home from a friend.

[46] He then gave his borrowed car to another friend (Bonnie) that same day between 12-2. After Bonnie returned the vehicle, he then proceeded to attempt to drop off a phone to a customer at the Station Park hotel but nobody answered the door so he returned to his home to retrieve his driver’s licence (which he forgot) and then proceeded to a residence on Highbury Ave. to drop off a CD to a friend named Mike. He next travelled to the courthouse where he was arrested.

[47] The defendant readily acknowledged using cocaine 2-3 times/week but vehemently denied selling drugs to anyone that day or receiving any money for drugs from anyone on that day. He denied any knowledge of the cocaine or the marijuana found in the vehicle. He says he never used marijuana.

[48] He acquired his cellphone from a customer and used a “pay-as-you-go” monthly plan that allowed unlimited texting and talking. He did not wipe the contacts from this phone and allowed a number of his friends to use the phone (at least 6 people) and to put their contacts on the phone, including Bonnie and Savanah. He had difficulty obtaining or remembering the last names of any of his friends. He identified a handful of the 218 contacts on the phone as being contacts that he entered into the phone.

[49] He received a constant series of text messages from someone identified on the phone as Tucker Cal on February 24, 2011, and says that he responded with “K” just to get him to stop texting (see (iii) above).

[50] He would sometimes sell a client a cellphone without cleaning the existing contacts but only fixing the broken parts.

[51] In cross-examination, he indicated that he had two cellphones, one for business and one for pleasure. He outlined a series of medications he takes for anxiety and depression and that this medication is helping his memory quite a bit.

[52] He recalled that on February 24, 2011, he went to his friend Mike Howard’s house to give him a CD back that he had borrowed. Mike was waiting for him outside of the house and approached his car to retrieve the CD as soon as he saw the defendant.

[53] The defendant spoke of a number of hospital stays since 2010 to deal with mental health issues and the damages that drug use had done to him.

[54] He readily admitted to smoking crack cocaine in rock form (used a lighter to melt it) in 2010 and agreed that the half $5 bill found on his person at the time of arrest was used to sniff drugs, namely powder cocaine. In 2010 he used drugs 3-4 times per week. He would sometimes spend up to $500/week for a ¼ ball of cocaine when he had enough cash.

[55] He conversed with his friends and clients in English and passed the English exam required to obtain a taxi licence around 2011.

[56] He denied knowing Bonnie’s friend Tucker before this incident (but became aware of who he was shortly thereafter) and agreed that same name appeared on the contact’s list and was texting him on February 24, 2011.

[57] He saw two parking tickets lying on the floor next to the brake pedal of the vehicle on February 24, 2011 and decided to pick them up and put them in his wallet in order to give them to Natalie, the owner of the car. The date on one of the tickets was two months earlier (December 2010). He denied that these were his tickets.

[58] When he loaned the vehicle to Bonnie, he did not discuss drugs or her using the vehicle to get drugs.

[59] He received many calls on his cellphone looking for Savannah or Bonnie. He is sure that all of the sent messages from Tucker Cal on February 24, 2011 were for Bonnie.

[60] He responded to Tucker Cal’s messages that day with the letter “k” so that Tucker Cal would stop texting him.

[61] He later clarified that he actually stopped taking drugs (crack cocaine) on February 23, 2011. He knew this because he has just reviewed his weekly diary the previous evening and this was in there. He shared drugs (one gram of cocaine which the defendant used ½ and shared ½) with Bianca that evening at her place after he picked up the vehicle.

[62] He recalled attending the motel on September 24, 2010 because he had a cellphone customer there. He suspects the reason he quickly turned into Tim Hortons that day was because he missed the road he was looking for. He also recalls meeting with someone at the Petro Canada that day that could have been a customer. It is not uncommon for customers to come to his driver’s side door and for him to hand them their phone.

[63] The diary also refreshed his memory that after his arrest, Bonnie told him she borrowed his car to buy marijuana and cocaine from a drug dealer in Woodstock and hid them in the console of the car because she was high, afraid the police might pull her over and did not have a driver’s licence.

[64] He explained that a series of messages sent late on the evening of February 22, 2011 were not sent by him and that he must have lent his phone to a friend. He then clarified that he did not lend the phone for the whole night but just parts of the night.

[65] When asked to produce the diary that he had located and reviewed, he testified that he could not that day because his brother had the key to the house and was out until 6:00 p.m.

Bonnie Kerr

[66] Bonnie testified that she met the defendant in 2009 through his online cell business and became friends thereafter.

[67] She would use the defendant’s phone to call people because she did not have a phone in 2011.

[68] She recalled borrowing the vehicle from the defendant on February 24, 2011 and driving to Woodstock to pick up cocaine and marijuana. She was a big-time addict and used powder and crack cocaine and marijuana. She decided to go all the way to Woodstock that day because she was getting a good deal. She purchased nine grams of cocaine for $500 and one ounce of marijuana for $200. She forgot the drugs in the vehicle when she returned because she was high, in a hurry and was going to miss her bus. She did a few lines of cocaine in the vehicle before leaving Woodstock. She stored the drugs in the centre console in a separate compartment where you store CD’s in case the police stopped or searched her. She did not have a driver’s licence. She realized she did not have the drugs around 5:00 p.m. that day and used a friend’s phone to try and reach the defendant by calling his business phone.

[69] She knows Tucker Cal and traded him two grams of mushrooms for two grams of weed earlier that day (February 24, 2011), so that she could smoke it on the way to Woodstock.

[70] She confirmed that the defendant did not know Tucker Cal, and that she called him Tucker and not Tucker Cal. She gave Tucker the defendant’s number that day. She indicated that Tucker had complained to her after February 24, 2011 that she had shorted him on the mushrooms so she gave him another gram of weed to shut him up. She put some of her contacts for her friends in the defendant’s cellphone.

[71] She felt “like a piece of shit” when she found out the defendant was arrested for her drugs and simply wants to now straighten the issue out and tell the truth.

[72] In cross-examination, she agreed that the phones she bought from the defendant in the past had no previous contacts on them and had been wiped clean.

[73] She used a lot of drugs at this time of her life including fentanyl, crystal meth, powder and hard cocaine and marijuana and described herself as a “functioning drug addict”. She hid her drug use from the defendant and he hid his drug use from her.

[74] She trusted the dealer in Woodstock so she did not weigh the drugs she purchased. She smoked a couple of joints on the way to Woodstock and did a number of pills the day before, including Oxy’s, Hydro’s and Ritalin.

[75] She confirmed putting the drugs she purchased in the armrest where you put CD’s with a rolling lid on top. Tucker was pretty mad about being shorted and wanted his weed back so she gave him one gram of weed when he came to my house.

[76] She used the defendant’s phone on earlier occasions to text Tucker and said that Tucker would refer to everybody as “man”. She did not deal drugs but would share them with friends. Tucker was her dealer for pills.

Jamal Yousuf

[77] Jamal met the defendant at church and was 15 at the time of these events. The two became friends and remain so today. He lent the defendant (who he called Soni) a CD of church music and remembers Soni coming by to drop it off at a friend’s house on Fuller Street at Highbury Avenue across the street from Montcalm. He told the defendant where to meet him and when the defendant arrived in a red SUV, Jamal approached the vehicle and retrieved his CD. Jamal’s nickname at this time was “Mike”. He could not remember the specific day this event took place.

[78] In cross-examination, Jamal confirmed the defendant is 10-15 years older than him and that he purchased a phone from the defendant and the contacts had been wiped clean.

Credibility

[79] I found the Crown witnesses evidence to be credible. They were all police officers who relied on contemporaneous notes or reports and testified in a straightforward manner. Although I may not agree with some of their conclusions, they fairly engaged their powers of observation and memory to clearly describe what they observed. For the most part, I accept their evidence.

[80] I also found Jamal Yousuf testified in a similar straightforward and clear manner relying on his memory of events to describe what he recalls taking place. I have no difficulty accepting his evidence.

[81] The same cannot be said for the evidence of both the defendant and Bonnie Kerr.

[82] The evidence of Bonnie Kerr is neither reliable nor credible. It defies logic and common sense at every turn.

[83] She asks me to believe that a self-professed hard-core addict would go to extraordinary lengths to call a friend to borrow her car (and then call the defendant to arrange to use the friend’s car that he has borrowed) to take the bus to get the keys and to drive for 45 minutes each way to acquire $700 worth of drugs and then somehow, while under the influence of cocaine and marijuana, remember to return the car and the keys to the defendant within the allotted time but forget the drugs.

[84] The importance of those drugs to her at this juncture of her life as a heavy drug user and addict make it implausible and inconceivable that she would forget the drugs in the vehicle after the efforts she made.

[85] Additionally, she never testified that she put Tucker Cal in as a contact on the defendant’s phone and when asked to go through the list of contacts (which includes Tucker Cal at p. 18 of Exhibit 1) she did not acknowledge this contact or that she entered it into the phone.

[86] Simply put, I find her story that she went all this way for a “good deal” to be far-fetched and unconvincing. She had dealers available to her in London and given the costs involved to simply get to Woodstock, her story is both incredible and unbelievable and I reject it in its entirety.

[87] The evidence of the defendant is riddled with problematic and puzzling explanations.

[88] He was subject to a lengthy and unrelenting cross-examination by the Crown. At repeated junctures, he would either change his story or resile from his earlier evidence and then present a new version of events that he was “100 percent” certain were accurate.

[89] Although his testimony was replete with examples of inconsistencies and variations to his testimony, I note the following few examples:

i. At one point he testified that he was one thousand percent sure he stopped using drugs at the end of 2010. Yet the following day, after reviewing a diary that he was unable to produce (apparently because he had no key to where he lived that day and his brother was not available until after 6:00 p.m.) he now indicated that he used drugs up until February 23, 2011 and used them 4-5 times in the month of February.

ii. At many points in time when he was confronted by the Crown with a text message or phone call that may have connected him to some concerning text messages, he would insist these messages must have been for someone else even though he was in possession of the phone at the time or shortly thereafter and often changed his story about who sent or received a certain message. He often would refer to other calls or texts as being sent or received from his business cellphone when it appeared convenient and beneficial to do so.

iii. His evidence that he did not wipe clean the previous contacts on his personal cellphone that he acquired from a customer is incapable of belief, particularly in light of the fact that he is in the business of re-selling cellphones and every witness who testified on his behalf confirmed that he wiped clean the contacts list on the phones he sold to them. He also agreed that wiping the contacts list or cleaning the list was simple to do.

iv. Although he could not remember many things because of his memory problems, he had no difficulty remembering that many of his short duration stops on both September 24, 2010 and February 24, 2011 were to visit customers.

[90] More generally, I found it almost impossible to match his earnings to his drug consumption and was baffled by his inability to recite the last name of almost all of his close friends who he lent his cellphone to and let them store contacts on.

[91] Simply put, I found his evidence unreliable, unreasonable and untruthful. It defied logic and common sense and was altered regularly to try to explain events. His evidence, for the most part, is untrustworthy and unbelievable.

[92] Having made such credibility findings, the onus remains on the Crown to prove the essential elements of the offences beyond a reasonable doubt. I now turn my mind to those elements.

Possession

[93] Section 2 of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code. Since the drugs found were not in the actual physical and personal possession of the defendant but rather in a vehicle that he was operating, the Crown needs to prove that the drugs were knowingly placed in the vehicle by the defendant, or for the benefit of the defendant, for his own use or benefit. The line between personal or constructive possession, in these circumstances, is often a thin line.

[94] Under s. 4(3)(a), a person possesses something if they have it in a place for their use or benefit or for another person’s use or benefit.

[95] The real issue before me is whether the defendant had the requisite knowledge of the drugs in the console of the vehicle. He says he did not. Bonnie says they were her drugs that she forgot. I disbelieve both of them.

[96] He was still using cocaine on the night prior to this day.

[97] The element of knowledge may be established by circumstantial evidence which can be sufficient to infer the requisite knowledge: See R. v. Pham, 77 O.R. (3d) 401 (Ont. C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940.

[98] He was the sole occupant and driver of the vehicle when he was arrested. In and of itself that is sufficient to satisfy the necessary measure of control over the contents of the vehicle.

[99] I am mindful that he was not the owner of the vehicle, and that the drugs were not in plain view. I also take into account that the police saw no hand-to-hand exchanges during any of their surveillance. There is some evidence to challenge the defendant that he used the vehicle sparingly (i.e. parking tickets in his possession and the realities of running a busy cellphone business) but what remains clear is that this vehicle did not belong to the defendant and was used by others, some of whom were drug addicts.

[100] This is a circumstantial case relying on circumstantial evidence. I must be satisfied beyond a reasonable doubt that the inference of the defendant’s knowledge of the drugs in the console is the only reasonable and rational inference that emerges from the facts.

[101] As stated earlier, I reject both the defendant’s and Bonnie’s explanations for how the drugs got there. I am highly suspicious and suspect that the defendant put them there. However, I cannot, as a matter of law, conclude in these circumstances that as the sole occupant of the vehicle, he was prima facie in possession of the drugs.

For the Purposes of Trafficking

[102] Given my conclusion with respect to possession, it may not be necessary to analyze this essential element of the offence. Nonetheless, I will review it in the event that I am in error.

[103] As mentioned earlier, this is a circumstantial case that requires me to draw inferences. An inference of an intention to traffick can arise from a number of factors including:

i. quantity of drugs;

ii. the presence of drug paraphernalia such as packaging and diluents; and

iii. association with drug users and traffickers.

[104] The Crown and its expert properly and fairly concede that the quantity of drugs seized could be consistent with personal use. However, in and of itself, this is not conclusive if other evidence proves an intention to traffick: see R. v. Menzies, 2015 ONCA 591, 124 W.C.B. (2d) 428.

[105] The paraphernalia found in the vehicle were either under the front seat (Vitamin E container with an unknown white residue) or in the back of the vehicle (boxes of baking soda, baggies, a box cutter and a utility knife). They were not in plain view of the driver although the defendant acknowledges moving the baking soda boxes earlier that day. No surveillance on February 24, 2011 observed the defendant opening or closing or accessing the rear of the vehicle. There were no scales or debt lists found and more instructive, no cash was found on the defendant or in the vehicle.

[106] The Crown places heavy reliance on the text messages on the cellphone of the defendant. The records provided to the court of the activity on the cellphone appear to be incomplete.

[107] When reviewed in detail, there is but one outgoing message which could reasonably be capable of suggesting an offer to sell drugs.

[108] The Crown, relying on the analysis in the Supreme Court of Canada’s decision in R. v. Baldree, [2013] S.C.R. 520, asks that I accept and rely on the incoming messages for the truth of their contents. Respectfully, on the facts before me, I cannot accede to this request.

[109] I am not satisfied that there are sufficient circumstantial indicators of threshold necessity and reliability to justify admission for the truth of their contents.

[110] The evidence of short meetings and purported “heat checks” does not elevate the reliability of such messages. Although I remain highly suspicious, there is at least one other plausible explanation for such meetings and if in fact they were drug transactions on the February 24, 2011 date, I note the absence of any money found on the defendant upon arrest. Although Jamal Yousuf (who goes by the name Mike) cannot remember the date that he met the defendant at Fuller Street to retrieve his CD, his evidence provides a plausible explanation for the meeting observed by police on that day.

[111] Simply put, the content of these messages is hearsay and in the absence of sufficient indicia of necessity and reliability, such evidence cannot be relied upon for the truth of its contents.

[112] No effort was made by police to interview or identify Tucker Cal, or the owner of the vehicle. Although the defendant acknowledges responding to the torrent of text messages on February 24, 2011, I rely on those messages in the limited sense of assessing the credibility of his evidence regarding his actions and as part of the narrative. His terse response of “K” is insufficient to draw the conclusions urged by the Crown.

[113] There is simply a lack of extrinsic evidence beyond the texts themselves to provide a sufficient threshold for necessity and reliability.

[114] Although not pursued by the Crown I would also not admit the texts under the res gestae exception to the hearsay rule which would admit the texts as relevant because they are part of the narrative and were made in circumstances that permit sufficient indicia of reliability: see R. v. Y. (N.), 113 O.R. (3d) 347 (Ont. C.A.).

[115] There is no evidence of any outgoing calls from the defendant’s cellphone to Tucker Cal.

[116] As referenced earlier, where the Crown relies on circumstantial evidence I must be satisfied that guilt is the only reasonable and rational inference that can be drawn from the evidence: see R. v. Griffin, [2009] 2 S.C.R. 42, at para.33.

[117] Notwithstanding the expert evidence and the inferences the expert invites the court to draw, the small amount of cash found on the defendant and the fact that this was not his vehicle combined with the limited use made of this vehicle by the defendant are all factors that militate against the court accepting such inferences. The police made several attempts to locate the vehicle at the defendant’s residence between September 24, 2010 and February 24, 2011, all without success.

[118] Although I remain highly suspicious of the actions of the defendant, when taking into account the quantity of the drugs seized, the lack of any observation of hand-to-hand exchanges and the ambivalent nature of some of the short duration stops, coupled with the evidence of Jamal Yousuf, I am satisfied that the evidence falls short of that required to prove the requisite element of intent to traffick in either cocaine or marijuana.

[119] Accordingly, I am not satisfied that the Crown has proven beyond a reasonable doubt that the drugs in question were in the possession of the defendant for the purposes of trafficking.

[120] In reaching this conclusion, it should be clear to the defendant that I entirely reject his evidence. Nonetheless, although his evidence does not raise a reasonable doubt as to his guilt, the evidence that I do accept falls just short of the required proof beyond a reasonable doubt. As directed by the Supreme Court of Canada at branch (iii), of W(D), even if I disbelieve the defendant’s evidence and his testimony does not leave me with a reasonable doubt, I may only convict if the evidence I do accept establishes his guilt beyond a reasonable doubt.

Conclusion

[121] For the above reasons, I find the defendant not guilty on both counts. You are free to leave.

“Justice M. A. Garson”

Justice M. A. Garson

Released: March 9, 2017 (Orally)

Footnotes:

[1] The officer explained that “grab more” is slang for grab cocaine.

[2] The officer testified that “a ball” is slang for 1/8 of an ounce or 3.5 grams of cocaine, which is a common amount of cocaine or crack to purchase.