CITATION: R. v. Malcolm, 2017 ONSC 7499

COURT FILE NO.: CR-17-1/35

DATE: 20171215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUSTIN MALCOLM

S. Adams, for the Crown

E. Battagaglia, for Mr. Malcolm

HEARD: December 6-8, 11, 2017

REASONS FOR JUDGMENT

SCHRECK J.:

[1] In 2016, the Toronto police were engaged in a large wiretap investigation that included among its targets a person named Sean Wright. In April 2016, the police intercepted a number of conversations between Mr. Wright and another man during which the man was heard threatening a woman and later admitting that he had assaulted her. The police believed that the man speaking to Mr. Wright was Justin Malcolm and that the woman was a person named R.V.

[2] Based on information in the intercepted communications, the police executed a search warrant on a residence in Brampton where Mr. Malcolm was staying. A quantity of cocaine was found in one of the bedrooms. Also found in that bedroom was correspondence and identification documents in Mr. Malcolm’s name, as a well as a purse belonging to R.V., who was present at the time of the search.

[3] As a result of the investigation, Mr. Malcolm is charged on a six-count indictment with the following offences:

Count 1: Assault on R.V. on April 10, 2016.

Count 2: Unlawful confinement of R.V. on April 10, 2016.

Count 3: Utter threat to cause bodily harm to R.V. on April 10, 2016.

Count 4: Obstruct peace officer on April 10, 2016.

Count 5: Possession of cocaine for the purpose of trafficking on April 13, 2016.

Count 6: Possession of cocaine on April 13, 2016.

Mr. Malcolm has elected to be tried by a judge without a jury. At his trial, the Crown relied on the intercepted telephone calls as well as the testimony of a number of police officers involved in the investigation. There is no issue that the substance that was seized was cocaine and that whoever possessed it did so for the purpose of trafficking.

I. EVIDENCE

A. The April 10, 2016 Intercepted Calls

(i) The First Call

[4] At 6:34 p.m. on April 10, 2016, Mr. Wright called the person alleged to be Mr. Malcolm at the number 647-717-XXXX. During the call, the man makes certain comments which suggest that he is at a bar or a restaurant. At times during the call, he is heard speaking a woman in the background. He is clearly displeased with her. At one point, he suggests to Mr. Wright that he is going to “dump her in the Uber” or send her home in an Uber that he is expecting to arrive.

[5] Later during the conversation, the woman threatens to leave. The man responds that he does not care if she does. On several occasions, he tells her that he will “mash up your whole face”. He also tells her that he will “tear off your fucking face” and that he will “beat your fucking ass right now”.

[6] At one point, the man tells the woman that she is “gonna suck my nigger’s dick that’s what you’re gonna fucking do”. This appears to be a suggestion that he will make her perform oral sex on Mr. Wright. Mr. Wright then asks to speak to the woman and tells her repeatedly that she is “gonna be sucking my dick”. She repeatedly responds that she will not do so. When the man takes back the phone, he says “We’re gonna penetrate this girl to the point where she’s fucking squirting”. Mr. Wright indicates that he wants the woman to perform oral sex on him, so the man tells her that she will “have to drink my nigger’s juice, bitch”.

[7] Later, the woman advises the man that the Uber is outside. The man continues to tell her that she will have to perform oral sex on Mr. Wright. At one point, the man tells the woman to “go in the front”, which suggests that they were entering the Uber. The two men then discuss other topics, after which the call ends.

(ii) The Second Call

[8] At 8:27 p.m., Mr. Wright calls the man again at the same number. Once again, the woman is heard in the background. The man is again displeased with her and tells her that he is going to kick her. The woman is heard crying in the background and repeatedly saying “please stop”. At Mr. Wright’s request, the man again tells the woman that she will have to perform oral sex on Mr. Wright. The woman is heard crying and the man tells her that she is making too much noise.

[9] At one point, it appears that the woman has armed herself with pepper spray. The man indicates that he is not afraid of the pepper spray. After this, there is noise heard in the background and woman says “no please” several times.

[10] During the call, the man tells Mr. Wright that the woman had made noise so his aunt had come to him to ask “what’s wrong with you and these fucking bitches?” The woman continues to speak in the background. The man tells her that he is going to slap her and she asks him not to. The woman then says “I just wanna be happy” and asks the man why he is doing this to her. There appears to be some sort of altercation and the woman says “I don’t like it” several times. The man tells her to stop making noise and says that he will send her home. A short while later, he tells her that he will “bust her nose”.

[11] The woman continues to cry and says that she “don’t wanna be with someone that makes me cry” and that she does not “want go through this anymore”. The man responds as follows:

MAN: She doesn’t want to go through it no more. Hmm, some pretty face. You belonging to me, you never fuck me, you understand?

WOMAN: No.

MAN: You can’t leave me. I’ll slice your fucking face.

WOMAN: No.

MAN: I’ll slice your face and do seven years.

WOMAN: No.

MAN: I’ll cut your face.

WOMAN: No, Justin please, I’m scared.

The man then tells Mr. Wright that “she need to fucking understand who she dealing with”. The woman continues to cry and at one points says “don’t hit me”.

[12] Mr. Wright and the man discuss other topics for a time, after which the woman is again heard crying in the background. The man tells her to “shut up”. She later says “Justin, please stop”. He tells her that she is being too loud.

[13] Later, Mr. Wright and the man discuss a person they know called Elder. At one point, the man says “That’s why I know it’s a true thing ‘cause she telling me, Justin, please just…please just…” The woman is again heard crying in the background. Mr. Wright then takes another call and speaks to somebody else.

B. The Visit From the Police on April 10, 2016

(i) The Attendance at the House

[14] The police believed that Mr. Malcolm was the man speaking to Mr. Wright and that he was residing at an address on Mansfield Street in Brampton. As a result of hearing the intercepted communications, arrangements were made to have members of the Peel Regional Police attend at the address on Mansfield Street to check on the well-being of the people inside. In order to protect the integrity of the wiretap investigation, one of the officers in charge of the investigation, Det. Steinwall, met with Sgt. Gottshling of the Peel Police in advance to brief him. They agreed that they would tell the inhabitants of the house that they were responding to an anonymous telephone call.

[15] Sgt. Gottshling, Cst. Adam Thompson and another officer went to the house, where they found two women and one man. Cst. Thompson described one of the women as “elderly” which he defined as “over 50”. The second woman was younger and identified herself as R.V. The man identified himself as Brandon Smart, with a date of birth of March X, 1986. It is the Crown’s theory that this person was actually Mr. Malcolm.

[16] The officers told the inhabitants of the house that they had received an anonymous call that there had been yelling and screaming heard coming from the house. The older woman was reluctant to allow the police in. She called 911 to inquire whether the officer were allowed to enter the house and then agreed that they could enter. The officers did not observe anybody to be injured or any sign of a struggle. The younger woman told them that she had been yelling at somebody on the phone. The officers then left the house. While the exact time at which the Peel officers attended the house is unclear, the meeting between Det. Steinwall and Sgt. Gottshling before the visit was at 8:26 p.m. and they then met again after the visit at 8:55 p.m.

(ii) The Identification Procedure

[17] Sgt. Gottshling told Det. Steinwall what he had seen inside the house. Det. Steinwall told Sgt. Gottshling that he would text him a photograph and ask him whether it was the man he had seen in the house. The only description that Sgt. Gottshling had noted of the man in the house was that he was black, approximately in his 20s and had a slim build. He could not recall his height. The following day, Det. Steinwall texted a photograph of Mr. Malcom to Sgt. Gottshling. He testified that when he received the photograph, he recognized the person in it as the man he had seen in the house.

C. The April 11, 2016 Intercepted Call

[18] At 9:26 a.m. the following day, Mr. Wright called the man alleged to be Mr. Malcolm. The man told Mr. Wright that the police had come to his house “last night”. He said “I slap this bitch in the Uber” and that he had “slap[ped] her up in front of my aunt”. He believed that it was the Uber driver who had called the police. The man told Mr. Wright that his aunt had told the police “You’re not coming in my house” and that nothing was going on, so they left. Both Mr. Wright and the man refer to the woman they are talking about as “R.”, which is R.V.’s given name.

D. Execution of the Search Warrant on April 13, 2016

(i) The Arrest of Mr. Malcom and Entry Into the House

[19] The police obtained a search warrant for the house on Mansfield Street, which was executed on April 13, 2016 at 1:18 p.m. Mr. Malcolm was arrested shortly after being seen leaving the residence at around 1:00 p.m. The police gained entry using keys that they obtained from a woman who was seen leaving the residence. She was later identified as R.V.

[20] The house had two stories and a basement. There were four bedrooms on the second floor to which the police assigned numbers. Bedroom 1 appeared to be the master bedroom and contained women’s clothes. There does not appear to be any issue that this room belonged to Mr. Malcolm’s aunt. Bedroom 3 contained piles of clothing and other items, all in disarray. There was a bedframe, but no mattress. Bedroom 4 contained a mattress, a closet full of clothing, and various personal items.

(ii) Bedroom 2

[21] Bedroom 2 contained a bed, a desk with an attached shelf, and a television. There were a number of pairs of shoes, both in and out of boxes, piled near a closet. Det. Cst. Chant photographed a “sample” of two pairs of the shoes, both of which were size 8.5. He could not say what size the other shoes were. The closet contained various items of what appeared to be men’s clothing. There was no women’s clothing found in the room.

[22] On the top of the shelf that was attached to the desk the police found a wallet which contained Mr. Malcolm’s driver’s licence with an address on Massey Street in Brampton. The licence had an expiry date of May 30, 2016.

[23] On the top of the desk were empty bottles, a bag of popcorn, some magazines and various other items. Among them was a recognizance, dated January 22, 2016 in Mr. Malcolm’s name with Brandon Smart as a surety. One of the conditions of the recognizance required Mr. Malcolm to reside at the address on Mansfield Street.

[24] The desk had two drawers. The upper drawer was full of paper and included an envelope from the Office of the Children’s Lawyer addressed to Justin Malcolm at the address on Mansfield Street. It was postmarked January 7, 2016. Inside the envelope was a letter, also dated January 7, 2016, addressed to a lawyer, Mr. Malcolm, and another person. The letter related to family court proceedings and an order by a judge requesting the involvement of the Children’s lawyer.

[25] Also in the top drawer was a disclosure package relating to charges of assault and mischief against Mr. Malcolm from 2012. The drawer also contained an Ontario health card in Mr. Malcolm’s name which had expired in July 2013 and another letter addressed to Mr. Malcolm, but at the same address on Massey Street that was on the driver’s licence. There was also a letter from a public school addressed to the “Guardian/Parent of” followed by a name. I heard no evidence as to whether Mr. Malcolm had any children. The name on the school envelope does not match any of the names on the Children’s Lawyer letter.

[26] The bottom drawer was full of paper, bits of plastic, and other items. Among the pieces of paper was an “Ontario Provincial Police Prisoner Report” with Mr. Malcolm’s name on it and the address of XX Massey Street. Another document in the drawer that was not seized appeared to be a court document with the name “Justin” on it.

(iii) The Cocaine in the Drawer

[27] The bottom drawer of the desk also contained a quantity of cocaine in a clear plastic wrapper that was tied in a knot, a second piece of cocaine inside a white plastic bag and a small digital scale. The cocaine pieces were later found to weigh 10.51 and 3.2 grams.

(iv) The Cocaine in the Gucci Bag

[28] After the search of the residence was underway, R.V. told one of the officers, Det. Cst. Chant, that she needed her purse, which was in a bedroom upstairs. Det. Cst. Chant accompanied her upstairs and she indicated that her purse, which she described as brown and made by Louis Vuitton, was in bedroom 2. Det. Cst. Chant entered the room. In a pile of objects that the police had put there during the search, he saw two purses, one made by Gucci and one by Louis Vuitton. He picked up the Gucci purse, opened it and saw some clear plastic bags containing what he believed to be cocaine. He then picked up the Louis Vuitton purse. He looked inside it and saw what appeared to be personal effects, after which he gave it to R.V.

[29] The Gucci bag was found to contain three pieces of cocaine wrapped in plastic. Two of them each weighed 28.12 grams and the third weighed 27.02 grams. The police also located a money counter on the floor.

E. The Evidence of Brandon Smart

(i) The House on Mansfield Street

[30] Brandon Smart, who is Mr. Malcolm’s cousin, testified as a defence witness. He is 31 years old and has no criminal record. He testified that in April 2016, he was living at the address on Mansfield Street with his mother and sisters. At the time, Mr. Malcolm was residing there as well because Mr. Smart was acting as his surety. Prior to that, Mr. Malcolm had been living with his mother on Massey Street, and he still spent the night there from time to time. According to Mr. Smart, R.V., who is also his cousin, spent a lot of time at the house on Mansfield Street.

(ii) The Visit By the Police on April 10, 2016

[31] According to Mr. Smart, when the police came to the house on April 10, 2016, he was the male individual who spoke to them. At the time, he was working as a teacher during the day and as a musician at night. He had been sleeping in the early evening when R.V. woke him up and told him that the police were there. He went downstairs and saw his mother speaking to the officers. He then spoke to the officers and provided them with his name and date of birth. According to Mr. Smart, Mr. Malcolm was not at home at the time.

(iii) Bedroom 2

[32] Mr. Smart testified that he usually slept on the living room couch or in the basement. Mr. Malcolm would “mostly” stay in the basement. The room which the police had labelled as Bedroom 2 was sometimes rented out. Mr. Smart also testified that R.V. was “mostly there”. Many other people has access to that room, including his mother, his sisters and their children, and another cousin. Mr. Smart was aware that there were a number of pairs of shoes in the room. He believed that some of them were size 10 and knew that at least one pair was size 12 as that was his size and he had borrowed them. When shown a photograph of the room, Mr. Smart identified one of the pairs of shoes as belonging to Mr. Malcolm. He recognized one of the items of clothing in the closet as belonging to a friend of his who had lived there previously but who had moved out in March 2016. Another item belonged to his nephew, who was 11 years old. In another photograph taken by the police after the search, Mr. Smart identified a scarf and two purses as belonging to R.V. One of the purses he identified was the one that had contained cocaine.

[33] Mr. Smart agreed that he had spoken to the police while the search warrant was being executed and when asked where Mr. Malcolm slept, had told them that he slept upstairs in the room next to the washroom. Mr. Smart agreed that this was Bedroom 2. Mr. Smart testified that he understood the police to be asking where Mr. Malcolm had slept the previous night and that although Mr. Malcolm usually slept in the basement, he had slept in Bedroom 2 that night.

II. ANALYSIS

A. Overview – Circumstantial Evidence

[34] With the exception of Count 4 (obstruct peace officer), the Crown’s case on each count depends entirely on circumstantial evidence. The approach to be taken to circumstantial evidence was recently considered by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):

. . . [I] n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts. The trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are based on logic and experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37. I intend to evaluate the evidence in this case in accordance with that approach.

B. Counts 1 to 3: Assault and Threatening in Relation to R.V.

(i) The Intercepted Calls

[35] The Crown’s case on Counts 1 to 3 relies almost entirely on the intercepted communications. The quality of the recordings is mediocre and the words being spoken are often difficult to make out. While transcripts of the calls were produced and filed, it is the recordings themselves and not the transcripts which constitute the evidence: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 47-48. I have therefore relied only on the recordings that I could make out while listening to them and have relied on the transcripts only where I was satisfied that they were accurate.

(ii) The Actus Reus and the Mens Rea

[36] The Crown concedes that it cannot prove Count 2 (unlawful confinement). I agree. While some of the statements made on the intercepted calls suggest that the individual alleged to be Mr. Malcolm coercively deprived the woman he was speaking to of her freedom of movement, the statements are not sufficiently clear to establish this beyond a reasonable doubt.

[37] With respect to Count 1, although there are sounds on the second call on April 10, 2016 that could be some sort of physical altercation, it is not entirely clear what is happening. However, on April 11, 2016, the man alleged to be Mr. Malcolm clearly admits to Mr. Wright that he had slapped the woman while in an Uber. With respect to Count 3, there is no issue that the man repeatedly threatened her. He told her that he would “mash up”, “tear off” or “slice” her face and that he will “beat your fucking ass right now”. As well, he and Mr. Wright repeatedly suggest that she will be made to perform fellatio on Mr. Wright against her will. These are clearly threats to cause serious bodily harm: R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, at pp. 83-85.

(iii) Identities of the Parties

[38] The real issue to be determined is whether the Crown has proven beyond a reasonable doubt that Mr. Malcolm was the person speaking during the calls. The Crown must also prove that R.V. was the woman who was the victim of the threats and the assault as she is particularized as the victim in the Indictment.

[39] No witness testified to being able to recognize Mr. Malcolm’s voice in the calls, and there was no admissible evidence linking him to the telephone number that was used. Instead, the Crown relies on the following circumstantial evidence:

• In every call, the man uses the same phone number, 647-717-XXXX, which has a Toronto area code.

• The man is referred to as “Justin” in the calls and refers to himself by that name. Mr. Malcolm’s given name is Justin.

• The woman is referred to in the calls as “R.”, which is R.V.’s given name.

• A woman with the given name “R.” is often at Mr. Malcolm’s home and was there on April 10 and April 13, 2016.

• The man in the calls appears to live with his aunt, as does Mr. Malcom.

• The man tells Mr. Wright that he was visited by the police on April 10, 2016 in relation to a concern about a domestic assault. The police visited the address on Mansfield Street on that date to investigate a domestic assault

• The man told Mr. Wright that his aunt would not let the police in. The police officers who visited the house on Mansfield Street testified that Mr. Malcolm’s aunt was reluctant to let them in.

[40] It is clear that all of these facts support the inference that Mr. Malcolm was the person speaking to Mr. Wright. The issue I must determine is whether these facts also support some other reasonable inference. Put another way, the question I must ask is whether there is another plausible theory or reasonable possibility, based on logic and experience applied to the evidence or the absence of evidence, which is inconsistent with Mr. Malcolm’s guilt.

[41] The only other possibility or theory that is consistent with the evidence is as follows. There is another person named Justin living in the Greater Toronto Area who, like Mr. Malcolm, is involved in some sort of relationship with a woman named “R”. Like Mr. Malcolm, this other Justin happens to live with his aunt. By sheer coincidence, the police came to the home of this other Justin to investigate a possible domestic assault on the very same date that the police went to Mr. Malcolm’s home. Also by sheer coincidence, this other Justin’s aunt, like Mr. Malcolm’s aunt, was reluctant to allow the police to enter. Is this a plausible theory or a reasonable possibility? I do not think that it is. In my view, such a coincidence is completely implausible and the only reasonable inference to be drawn from all of the evidence is that Mr. Malcolm was the person speaking to Mr. Wright, that the woman he was speaking to and about was R.V., and that he assaulted and threatened her.

Count 4: Obstruct Peace Officer

[42] When the police visited Mansfield Street on April 10, 2016, the man who was present identified himself as Brandon Smart. It is the Crown’s theory that this was really Mr. Malcom and that by falsely identifying himself as Mr. Smart, he obstructed the police.

[43] Mr. Smart testified that he was the man who spoke to the police and truthfully identified himself. There are issues with Mr. Smart’s credibility, which I will outline later in these reasons. However, it is undisputed that he lives at the address on Mansfield Street. Although Sgt. Gottshling positively identified a photograph of Mr. Malcolm as the person who was at the house, the identification was made in circumstances that were so suggestive that in my view, no weight can be given to it. Sgt. Gottshling was provided with a single photograph, which he expected to be of the man he had seen. The only description he noted was that the man was black, approximately in his 20s and had a slim build. I had an opportunity to observe both Mr. Malcolm and Mr. Smart in the courtroom. They both equally fit the description noted by Det. Gottshling and appear to me to be somewhat similar in appearance.

[44] While Mr. Malcolm told Mr. Wright about having been visited by the police, it is not clear from the conversation that he had firsthand knowledge of the visit.

[45] Having considered the testimony of Mr. Smart, the fact that he resides at the address on Mansfield Street, the flawed identification procedure and the similarity in appearance between Mr. Malcolm and Mr. Smart, I am left with a reasonable doubt as to the identity of the person who identified himself to the police as Mr. Smart.

Counts 5 and 6: Possession of Cocaine

(i) The Cocaine in the Drawer

[46] Cocaine was found in a desk drawer that also contained documents and identification with Mr. Malcolm’s name on them. Other documents and identification with Mr. Malcolm’s name on them were found on top of the desk and on the shelf attached to the desk. While some of these items were dated, others, such as the recognizance and the letter from the Children’s Lawyer, were dated from January 2016. There was no documentation or identification in anybody else’s name in the drawer, on the desk or elsewhere in the room. The one exception was a letter from a school addressed to the “Parent/Guardian of” a specific child, who was identified by Mr. Smart as being his nephew. However, I heard no evidence as to what relationship, if any, Mr. Malcolm had with this child, or whether or not he was the child’s guardian.

[47] I note as well that the room contained what appeared to be men’s clothing and shoes. The shoes photographed by the police were size 8.5. While I heard no evidence of Mr. Malcolm’s shoe size, the only other male living at the house was Mr. Smart, who testified that his shoe size is 12.

[48] While Mr. Smart testified that Mr. Malcolm stayed “mostly” in the basement, I do not accept his evidence on this point. His testimony was inconsistent with what he told the police. When asked by the police where Mr. Malcolm slept, he told them that he slept in the bedroom by the washroom, which he agreed was Bedroom 2. I do not accept Mr. Smart’s evidence that he meant only that that was where Mr. Malcolm had slept the previous night. Given the context, he clearly meant that it was where he regularly slept.

[49] The defence relies heavily on the evidence that R.V. retrieved her purse from Bedroom 2 while the search was ongoing as evidence that the cocaine belonged to her. However, other than the purse (and a scarf if one accepts Mr. Smart’s evidence on that point), there was nothing to indicate that R.V. inhabited that room. No identification belonging to her was found in the room and there was no women’s clothing. Although Mr. Smart at one point suggested that R.V. stayed in Bedroom 2, for the reasons outlined earlier his evidence on this issue is not credible.

[50] Counsel for Mr. Malcolm relies on R. v. Grey (1996), O.R. (3d) 417 (Ont. C.A.). That case is, in my view, clearly distinguishable. In Grey, the accused was not a resident in the apartment where cocaine was found hidden in a cassette player in a bedroom. While the accused’s clothing and documents were found in the same bedroom, there was no issue that the bedroom belonged to his girlfriend, whose clothing and effects were also in the room. There was no issue that the girlfriend possessed the cocaine. The only issue was whether the accused jointly possessed it with her and the Court of Appeal concluded that the evidence did not support the trial judge’s conclusion that he did. In this case, the cocaine was found in close proximity to items that clearly belonged to Mr. Malcolm, there was no documentation belonging to anybody else in or near the drawer, and he was a resident of the house.

[51] In all the circumstances, I am satisfied beyond a reasonable doubt that Mr. Malcolm possessed the cocaine in the drawer. It has been admitted that whoever possessed the cocaine did so for the purpose of trafficking.

(ii) The Cocaine in the Gucci Bag

[52] Cocaine was found in a Gucci bag in Bedroom 2. There was nothing else in the bag. The Crown points out that the cocaine was packaged in a manner similar to that found in the drawer. However, the defence points out that the Gucci bag was near the Louis Vuitton bag, which belonged to R.V., and that Mr. Smart testified that he recognized the Gucci bag as belonging to her.

[53] As explained earlier, there are issues with Mr. Smart’s credibility. He was clearly attempting to minimize the connection between Mr. Malcolm and Bedroom 2 and its contents. However, the Gucci bag, unlike the drawer, is easily moveable. Other than the fact that it was located in Bedroom 2, there was nothing in the bag to connect it to Mr. Malcolm. Another bag in the room, which was similar in size and also made by a “high end” designer, belonged to R.V. While the packaging of the cocaine was similar, all of the cocaine was packaged in the type of plastic of which common plastic bags are made. It was neither distinctive nor unusual. In all the circumstances, I am not satisfied beyond a reasonable doubt that Mr. Malcolm possessed the cocaine in the Gucci bag.

III. DISPOSITION

[54] For the foregoing reasons, Mr. Malcolm is found guilty on Counts 1, 3, 5 and 6. He is found not guilty on Counts 2 and 4.

Justice P.A. Schreck

Released: December 15, 2017.

R. v. Malcolm

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JUSTIN MALCOLM

REASONS FOR JUDGMENT

P.A. Schreck J.

Released: December 15, 2017.