COURT FILE NO.: 14-G1024 DATE: 2017/07/10 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Applicant – and – P. K. Masilamany C. M. Boudreau Respondents
COUNSEL: K. Reitsma and J. Hanna, for the Crown J. P. Giancaterino, for Mr. Masilamany B. Del Greco, for Ms. Boudreau
HEARD: January 9 -13, 19, 20 February 6, 10 and May 12, 2017
REASONS FOR DECISION DISMISSING CHARGES AGAINST C. M. BOUDREAU
KANE j.
Decision
[1] The trial of the charges against Ms. Boudreau and Mr. Masilamany concluded on February 10, 2017.
[2] This court on May 12, 2017 acquitted Ms. Boudreau of counts 1, 2 and 4 herein with reasons to follow.
Charges
[3] Mr. Masilamany is charged:
- Under count 1 pursuant to s. 5(2) and s. 5(3)(a) of the Controlled Drugs and Substances Act (the “Act”), with possession of 3 kg or less of marihuana for the purpose of trafficking on January 16, 2014;
- Under count 2 pursuant to s. 5(2) and s. 5(3)(a) of the Act, with possession of heroin for the purpose of trafficking on January 16, 2014;
- Under count 4 pursuant to s. 354(1)(a) and s. 355(a) of the Criminal Code of Canada (the “Code”), for possession of $8,725 of Canadian currency, knowing that all or part of it had been obtained from or derived directly or indirectly from an offence punishable by indictment, namely trafficking in controlled substances;
- Under count 6 pursuant to s. 145(3) of the Code, for breach of a term and condition of recognizance without lawful excuse, namely to keep the peace and be of good behaviour;
- Under count 7 pursuant to s. 145(3) of the Code, for breach of a term and condition of recognizance without lawful excuse, namely not to operate a motor vehicle; and
- Under count 8 pursuant to s. 145(3) of the Code, for breach of a term and condition of recognizance without lawful excuse, namely to reside at 10-3550 Ridgewood Ave. Montreal, Quebec.
[4] Ms. Boudreau is charged:
- Under count 1 pursuant to s. 5(2) and s. 5(3)(a) of the Act, with possession of 3 kg or less of marihuana for the purpose of trafficking on January 16, 2014;
- Under count 2 pursuant to s. 5(2) and s. 5(3)(a) of the Act, with possession of heroin for the purpose of trafficking on January 16, 2014;
- Under count 4 pursuant to s. 354(1)(a) and s. 355(a) of the Code for possession of $8,725 of Canadian currency, knowing that all or part of it had been obtained from or derived directly or indirectly from an offence punishable by indictment, namely trafficking in controlled substances.
Charges Withdrawn
[5] The Crown withdrew count 3 against each accused at the commencement of trial on January 9, 2017.
[6] The Crown on January 20, 2017 withdrew count 5 against Mr. Masilamany as the required notice had not been served pursuant to s. 260(5) and (6) of the Code.
Background
[7] Each accused pled not guilty.
[8] The Crown called the only witnesses in this trial. The accused introduced no evidence.
[9] In January 2014, Mr. Masilamany and Ms. Boudreau were 30 and 27 years of age respectively.
[10] The charges against Ms. Boudreau requires consideration of the nature of any relationship between she and Mr. Masilamany, whether they lived together in the same residence and whether she occupied that residence in December 2015, January 2016 and on January 16, 2014.
[11] The Ottawa Police Service Drug Unit (the “OPS”) received complaints on April 22 and 23, 2013, of reported drug activity by a male who was later identified to be Mr. Masilamany.
[12] The OPS conducted surveillance of Mr. Masilamany on April 26 and May 30, 2013, about which no evidence was led in this trial.
[13] On December 20, 2013, the OPS received information from a first-time, untested, confidential informant that Mr. Masilamany was engaging in trafficking of heroin and oxycodone. The OPS conducted surveillance of Mr. Masilamany and his automobiles on January 8, 9, 10, 14, 15 and 16, 2014.
[14] A search warrant was granted on January 16, 2014 to conduct a search of a small two storey residence located at 240 Starwood Rd. Ottawa (the “Residence”) and/or a black 2004 Porsche automobile bearing Ontario license marker BSFA408 (the “Porsche”) which were believed to be the residence and automobile of Mr. Masilamany.
[15] Pursuant to that warrant, the OPS searched the Residence and the Porsche parked there on January 16, 2014. At that time, Mr. Masilamany was in the living room and was the only person inside the Residence. Also in the Residence at the time of search was a large Bull Mastiff dog (the “Dog”).
[16] Mr. Masilamany during this January 16, 2014 search of the Residence was arrested and taken to the police station.
[17] Ms. Boudreau was not present in the Residence at the time the OPS searched the Residence on January 16, 2014. The evidence is that Ms. Boudreau was not a subject of the OPS briefings or surveillance conducted of Mr. Masilamany on and prior to January 16, 2014.
[18] Ms. Boudreau was arrested and charged on January 17, 2014 given the drugs the OPS found inside the Residence on January 16, 2014 and the personal identification documentation of Ms. Boudreau found inside the Residence during the warrant search of that house which led to their belief that she lived at the Residence.
[19] The surveillance evidence at trial includes a general non-specific description of one or more females entering or exiting the Residence from time to time and on occasion, travelling by automobile with Mr. Masilamany.
[20] None of the OPS surveillance officers who testified identified Ms. Boudreau as a female observed entering or exiting the Residence.
[21] The Residence was leased to Mr. Masilamany pursuant to a written lease. The term thereof is one year from April 1, 2013 to March 31, 2014. The lease indicates that the cellular and work telephone number of Mr. Masilamany have a 613 area code. That area code includes the City of Ottawa.
[22] The landlord lives across the street from the Residence and testified that: (a) Mr. Masilamany lived at the Residence starting in March 2013, including the period of January 9 to 16, 2014 and after his arrest on January 16, 2014 until July, 2016; (b) Mr. Masilamany continued his rental of the Residence since January 16, 2014; (c) Between March 2013 and January 2014, he most often saw Mr. Masilamany during the summer time, walking his dog on Starwood Rd., adjacent to the Residence; (d) He never entered the Residence after renting it to Mr. Masilamany due to his fear of the Mr. Masilamany’s large dog other than once concerning a furnace issue; (e) He spoke to Ms. Boudreau a few times at or around the Residence between 2013 and 2016. The first occasion of speaking to her was in 2013 when Mr. Masilamany introduced Ms. Boudreau to him as his girlfriend. He spoke to her at the Residence in 2016 after these charges were laid; and (f) He on occasion saw Ms. Boudreau leaving the Residence.
[23] The Residence consists of: (a) Two bedrooms on the second floor; (b) A living room, dining room, kitchen, den and washroom on the main floor; and (c) A basement.
[24] Only one of the two bedrooms contained a bed, which was double or larger in size (the “Master bedroom”). Women’s and men’s clothing were discarded over the floor of the Master bedroom at the time of its warrant search on January 16, 2014.
[25] The second bedroom had a closet which contained women’s clothing. That bedroom also contained a jewellery box and a partially opened box containing an infant’s crib.
Seized During Warrant Search
Drugs and Possible Drug Related Items
[26] The OPS during the January 16, 2014 search found the following inside the Residence: (1) A heavy marihuana odour upon entering the Residence; (2) A plastic bag with 182.95 grams of what later was confirmed to be marihuana – (inside an open paper shopping bag located inside the open den closet); (3) A plastic bag with 224.2 grams of marihuana - (inside the same open paper shopping bag located inside the open den closet); (4) A plastic bag with 224 grams of marihuana - (inside the same open paper shopping bag located inside the open den closet); (5) A plastic bag with 224.2 grams of marihuana - (inside the same open paper shopping bag located inside the open den closet); (6) A plastic bag with 223.6 grams of marihuana - (inside the same open paper shopping bag located inside the open den closet); (7) A plastic bag with 205.2 grams of marihuana - (inside the same open paper shopping bag located inside the open den closet); (8) A plastic bag with 174.9 grams of marihuana - (inside the same open paper shopping bag located inside the open den closet); (9) A plastic bag with 6.4 grams of marihuana – (on den coffee table); (10) A plastic bag containing 222.9 grams of marihuana – (under bed in Master bedroom); (11) A plastic bag containing 225 grams of marihuana – (under bed in Master bedroom), resulting in a combined total of some 1,933 grams of marihuana seized in the Residence, or approximately 4 pounds. and 3.5 ounces; (12) A clear plastic bag of white powdery substance which could not be identified upon later testing – (under front edge of den sofa); (13) A plastic bag containing a 27.1 gram block mixed heroin and caffeine - (under cushion on den sofa); (14) $8,000 of Canadian currency bundled together with a plastic band – (between lower oven drawer and the inner oven wall in kitchen); (15) $725 folded and bound with an elastic with identification as to Mr. Masilamany on it - (under a carpet in front of the den sofa); (16) An hydraulic press with a price tag attached to it – (on basement workbench); (17) An operating digital scale which had white powder residue on it with 5 and 10 gram weights and tweezers with white powder residue – (inside a box under the den coffee table); (18) Several empty sandwich size plastic bags – (in the den on the floor); (19) Two IPhones - (in living room) (20) Two Blackberry phones - (on den coffee table and sofa); and (21) Three non-functioning cellular telephones, a small non-functioning digital scale, a written list with first names of 19 people with numbers beside each name ranging between a low of 100 and a high of 8,300, two Blackberry and one LNG cellular phones, three SIM cards and a modified Red Bull can with a screw top containing a plastic bottle which contained a SIM card - (inside a Blackberry box and in the Master bedroom).
Personal Documents and Articles Seized
[27] Documents and articles seized during the warrant search of the Residence on January 16, 2014 included: (1) Ms. Boudreau’s then current Canadian passport, her birth certificate and documentation in her name including a SIN card, a library card, a MasterCard credit card, City of Ottawa library card, two hand written letters, one being to “Paul” from “Chantelle” and the other to “Baby” from “Paul M” – (in one of two plastic bins in the Master bedroom); (2) $70 direct deposit notification to Ms. Boudreau from the City of Ottawa dated January 13, 2014 addressed to her at the Residence – (living room); (3) A lot of female clothing, shoes and make up, a jewelry box which contained a cheque book with Ms. Boudreau’s name on cheques with her address thereon being 14 Deerfield Dr. and an unassembled crib in a box – (in the second bedroom of the Residence which did not contain an adult bed). (4) A “Mooseknucle” black waist length winter coat with a fur trim hood with keys in the pocket including a set of keys which keys to the Porsche and the entry doors to the Residence. Mr. Masilamany had been observed wearing a similar coat during the prior surveillance.- (in the hallway entrance to the Residence); (5) The Master bedroom had men’s and woman’s clothing strewn on that floor. The closet in that bedroom contained XL and XXL size men’s clothing; (6) A social insurance card in the name of Mr. Masilamany - (inside a Blackberry box in the Master bedroom); (7) Three Canada Trust bank access cards each signed on the back with the name “Paul Masilamany” – (inside the same above box in the Master bedroom); (8) Several Enbridge gas bills dated throughout 2013, several 2013 Ottawa water bills and several 2013 Ottawa Hydro bills, each for such services to the Residence and addressed to Mr. Masilamany at the Residence, correspondence addressed to Mr. Masilamany at the Residence from Bell, FedEx and Capital One, an Ontario business license in the name of Mr. Masilamany for the years 2007-2013, a signed Visa card application signed in the name of Mr. Masilamany – (in the Residence den); (9) A September 2013 notice from a Montreal collection agency addressed to Heart 02 Corp, a corporation associated to Mr. Masilamany and addressed to the Residence, a signed $4K credit card authorization for a car lease payment in the name of and allegedly signed by Mr. Masilamany listing the Residence as his address, a 2008 WSIB notice to Mr. Masilamany and Masi Homes addressed to 92 Lotta Ave. in Ottawa, a 2008 Government of Ontario business name registration receipt and a 2008 Ontario business license for Masi Homes with a “PMasilamany” address and an address for Masi Homes as 92 Lotta Ave., Ottawa – (in the Residence); and (10) A dog bed – (the basement);
Documentation Inside Porsche
[28] During the warrant search on January 14, 2016, the OPS also seized documents from inside the Porsche SUV (the “Porsche”) parked at the Residence. Police during their prior January 2014 surveillance of that vehicle had noted Mr. Masilamany as the driver, as a passenger therein and on occasion, accompanied in that vehicle by a female on several occasions and it being driven to, from and parked at the Residence.
[29] The documentation inside the Porsche included documents from Industry Canada regarding Heart02 Corporation which was incorporated by Mr. Masilamany in 2009 at which time his address is shown as 316 Garden Priv. Ottawa. Mr. Masilamany is shown in these documents which include a copy of the Corporations’ Articles of Incorporation as the President and sole Director of the Corporation. The address of the Corporation is shown as 386 Bank St. Ottawa.
[30] The evidence indicates that a Maserati and a Volvo station wagon were frequently parked in the driveway at the Residence (the “Maserati” and “Volvo”).
[31] The documents in the Porsche also included: (a) A December 24, 2012, $2,374 purchase invoice of home video equipment in the name of Mr. Masilamany listing his address as 195 Louisa, Ottawa. One OPS officer testified he noted the home video equipment inside the Residence on January 14, 2016 as he had similar equipment. He reviewed the equipment listed on the above invoice and stated they were the same as the video equipment he observed in the Residence on January 16, 2014. The 195 Louisa address is the address of Heart02 on the above two automobile insurance certificates issued to Heart02 for the Porsche, the Volvo and the Maserati. The invoice date of purchase is prior to the commencement of the lease of the Residence by Mr. Masilamany; (b) A February 13, 2013 receipt from an Ottawa auto garage acknowledging Mr. Masilamany’s payment of $30,000 cash towards the purchase of a car. Mr. Masilamany’s address is noted as 7 Woods Lane, Quesnel ON; (c) A March 4, 3013 receipt from the same above auto garage acknowledging receipt of $50,000 cash deposit from Mr. Masilamany for investment in used cars. His address is indicated as 7 Woods Lane Cornwall ON; (d) An $11,820 automobile bill of sale of a Maserati Coupe from a Montreal Leasing company to Heart02 at 386 Bank St. Ottawa; (e) A July 23, 2013 certificate of automobile insurance to Heart02 which lists its address as 195 Louisa St. Ottawa. The certificate confirms insurance of the Maserati and a Volvo XC90 truck/van (the “Volvo”); (f) A July 30, 2013 automobile invoice for repairs to the Volvo addressed to Mr. Masilamany indicating the Residence as his address; (g) An August 3, 2013 automobile invoice for repairs to the Porsche addressed to Mr. Masilamany indicating the Residence as his address; (h) An August 13, 2013 Ontario plate registration of the Porsche issued to Heart02 at 386 Bank St. Ottawa; (i) August 22 and 30, 2013 automobile invoices for repairs to the Porsche addressed to Mr. Masilamany and Heart 02 at the Residence; (j) A freight invoice from Maserati in Montreal to Heart02 and Gabriels Auto sales at 241 Preston St. in Ottawa; (k) A September 13, 2013 Ontario plate registration of the Maserati issued to Heart02 at 386 Bank St. Ottawa; (l) An October 5, 2013 notice to the Ontario Registrar of Motor Vehicles that the OPS has impounded the Porsche in Ottawa for 45 days belonging to Heart02 as Mr. Masilamany as its driver was disqualified from driving pursuant to s. 55.1 of the Highway Traffic Act; (m) A November 19, 2013 storage invoice and notice of release of the Porsche from being impounded and addressed to Mr. Masilamany at 1350 Ridgewood Ave. Montreal; (n) A December 19, 2013 application to revoke a City of Gatineau municipal court default judgment against Mr. Masilamany regarding two Gatineau traffic tickets. The application is filed in the name of and purportedly signed by Mr. Masilamany. That application lists the address of Mr. Masilamany as 1350 Ridgewood, Montreal, Quebec with an area code telephone number of 613. The court notes that area code 613 includes the City of Ottawa and not 514 area code which includes the City of Montreal; (o) An automobile certificate of insurance for the Porsche issued to Heart02 at 195 Louisa St. Ottawa and effective January 8, 2014; (p) Two sales receipts from The Bay store at Rideau St. Ottawa each dated December 10, 2013 and each for the purchase of 14KW diamond rings totalling together $6,056, of which $6,030 was paid in cash. The $28 combined balances were paid by credit card. The name of the purchaser is not indicated; and (q) A December 22, 2013 Sears purchase invoice for unidentified merchandise in the amount of $2,491 which was paid for in cash. The name of the purchaser is not identified.
Surveillance Observations by OPS
[32] The object of the surveillance again was Mr. Masilamany, his activities and his use of the Porsche. Neither Ms. Boudreau nor any female was the subject of that surveillance.
[33] The surveillance testimony includes occasional but very general reference to a female accompanying Mr. Masilamany in the Porsche to and from the Residence on January 10 and 16, 2014.
[34] The surveillance evidence records a female accompanying Mr. Masilamany and an apparent second female who entered the Residence on one occasion.
[35] The surveillance evidence does not identify Ms. Boudreau accompanying Mr. Masilamany nor entering or exiting the Residence on January 9, 10, 14, 15 and 16, 2014.
Analysis as to Charges Against Ms. Boudreau
[36] The January 16, 2014 presence in the Residence of Ms. Boudreau’s: (a) Passport, birth certificate; (b) Her cheque book, with a different address; (c) The $70 City of Ottawa deposit receipt addressed to her at the Residence; (d) The abundance of female clothing in the closet and the jewellery box; and (e) Combined with the landlord’s testimony of Ms. Boudreau being introduced as the girlfriend of Mr. Masilamany in 2013 and speaking to her at or around the Residence several times after March 2013 and after January 16, 2014. leaves this Court to conclude that the Crown has proven she resided at the Residence at sometime between March 2013 and January 16, 2014.
[37] When and how Ms. Boudreau’s documentation came into the Residence however is not in evidence.
[38] The issues as to knowledge, consent and control of the drugs involves whether Ms. Boudreau was living at the Residence or present therein on January 16, 2014, as that is the only date that the Crown has proven the drugs and alleged proceeds of crime were present inside the Residence. There is no evidence as to when those drugs and money entered the Residence prior to or on that date.
[39] None of the eight members of the OPS who testified as to their observations during the six days of surveillance identified Ms. Boudreau as a person they observed.
[40] The evidence indicates that on one occasion, a female entered the Residence who description was different than the woman described in testimony by several Officers as having “olive coloured complexion and long brown hair” who also entered and exited the Residence or was with Mr. Masilamany on occasionally.
[41] The landlord of the Residence did not testify that Ms. Boudreau lived at the Residence between or on January 8 to 16, 2014.
[42] There is no fingerprint evidence inside the Residence, on the drug exhibits or the alleged drug related equipment.
[43] As the lead investigator in these charges, Detective Hill testified that: (1) On January 17, 2014, he met with and charged Ms. Boudreau in this case; (2) As a member of the OPS surveillance team in this case, he did not observe Ms. Boudreau at the Residence during his surveillance conducted on January 8, 9, 10, 14 and 16, 2014; and (3) He did not subsequent to her arrest on January 17, 2014 show a picture of Ms. Boudreau to any of the other surveillance officers in this case and ask whether they had ever seen her during their surveillance of Mr. Masilamany and the Porsche in January 2014.
[44] The absence for 32 hours from the residence jointly occupied by a male and the accused female prior to the warrant search of that residence created sufficient doubt to dismiss the drug charges against the accused in R. v. Pham, [2005], O.J. No. 5127 (Ont. C.A.), paras 44, 49 and 50, aff’d [2006] S.C.J. No. 26.
[45] There is only impermissible speculative inferences to connect the drugs and the alleged crime proceeds seized in the Residence on January 16, 2014 to Ms. Boudreau.
[46] The Crown has not proven the charges against Ms. Boudreau beyond a reasonable doubt.
[47] The charges in counts 1, 2 and 4 against Ms. Boudreau are accordingly dismissed.