A. OVERVIEW

[1] The three accused, Gary Morris, Everald Brissett, and Courtney Benjamin (hereinafter, Morris, Brissett and Benjamin), are charged in a five count Indictment with various drug trafficking and proceeds of crime offences. They elected trial in this Court, by judge alone, and the trial proceeded before me over parts of nine days.

[2] The first two days of trial, on January 9 and 10, 2017, were taken up with pre-trial Motions. I heard and dismissed a s. 11(b) Charter Motion. See: R. v. Brissett et al., 2017 ONSC 401. A second Charter Motion, alleging s. 8, s. 9 and s. 10 violations, was briefly pursued and then wisely abandoned. The Crown called its case over the next three days. This part of the trial was significantly shortened by a number of sensible admissions negotiated by the parties. Finally, the defence case was called over the last three days of the trial.

[3] After hearing closing submissions on January 23, 2017, I reserved judgment. These are my Reasons for Judgment.

B. FACTS

(i) The police investigation

[4] The police investigation in this case unfolded with unusual speed. All of the relevant events were compressed into a single twenty-four hour period, from January 24^th to 25^th, 2014. The investigation resulted in three distinct seizures relating to the three accused.

[5] In brief summary, the police received a tip from a confidential informant to the effect that a male of Jamaican descent, known by the name “Pretty,” was storing and trafficking large amounts of cocaine in apartment 1004 at 3101 Weston Road in Toronto. It was around mid-day on January 24, 2014, when a police team set up surveillance at this location. They observed a male who matched the general description provided by the informant. This male was the accused Benjamin. He was observed exiting from the building, retrieving a bag from a taxi that had pulled up in front of the building, and then returning to apartment 1004.

[6] There were further observations of persons entering and leaving the Weston Road apartment carrying various items. The police followed two of these persons, who got into a Hyundai car and drove to a condominium building located at 205 Sherway Gardens. The Hyundai car parked in a circular driveway at the Sherway Gardens building and the front seat passenger got out of the Hyundai. This person was the accused Morris. He walked towards a taxi parked in front of the building. As he approached the taxi, the driver popped the trunk of the taxi. Morris opened the trunk and removed a large cardboard box. He carried the box into the Sherway Gardens building and was arrested. The box was searched incident to arrest and was found to contain seven kilos of cocaine. It was now shortly after 7:00 pm on January 24, 2014.

[7] Morris made an oral statement on arrest, advising the police that he was delivering the box to a ninth floor unit in the building. He took the police to unit 904 where they used the keys seized from Morris on arrest in order to gain entry to the unit. The police secured the unit, making sure that no one was inside who could destroy evidence. They proceeded to prepare search warrant Informations relating to both the Weston Road apartment and the Sherway Gardens condominium unit. While awaiting the search warrants, the accused Brissett arrived at unit 904 in the Sherway Gardens building and tried to gain entry. He was arrested and searched and found to be in possession of $1,785 in Canadian cash. It was now shortly after 11:00 pm on January 24, 2014.

[8] The two search warrants were obtained at about 2:00 am on January 25, 2014. Upon execution, significant seizures were made at both locations. In brief summary, the police seized approximately 1.4 kilos of cocaine and 200 grams of marijuana from the Weston Road apartment, which is admittedly the residence of the accused Benjamin. They also seized a number of digital scales and a quantity of phenacetin. The seized cocaine had been mixed with this cutting agent known as phenacetin.

[9] At the Sherway Gardens condominium unit, the police seized approximately 15.6 kilos of cocaine and two large buckets of phenacetin. One bucket was full and weighed ten kilos. The second bucket was half full and weighed just under five kilos. In addition, the police seized a large kilo size scale, a wooden cocaine press, a vacuum sealer and plastic bags.

[10] It is agreed that the seven kilos of cocaine seized from the box carried by Morris was worth between $315,000 and $420,000. Morris is charged with one count of possession of this cocaine for the purpose of trafficking. The only issue in his case is whether he had knowledge of the cocaine inside the box.

[11] It is agreed that the 15.6 kilos of cocaine seized from the Sherway Gardens condominium unit was worth between $700,000 and $935,000. Brissett is charged with one count of possession of this cocaine for the purpose of trafficking. The issue in his case is whether he had knowledge and control of the cocaine inside the unit. He is also charged with possession of proceeds of crime in relation to the $1,785 seized from him on arrest, when he attempted to enter the unit.

[12] Finally, it is agreed that the approximately 1.4 kilos of cocaine seized from the Weston Road apartment was worth between $67,000 and $93,000. The approximately 200 grams of marijuana was worth between $1,400 and $1,750. Benjamin is charged with possession of this cocaine and this marijuana for the purpose of trafficking. The issue in his case is whether he had knowledge and control of the cocaine and marijuana found in his apartment.

[13] All three accused admit that the various seizures of drugs are trafficking quantities and are not for personal use.

[14] It can be seen that the single police investigation yielded three somewhat distinct bodies of evidence relating to three separate accused and three separate sets of charges. I will summarize the three bodies of evidence in the chronological order in which the investigation unfolded, as follows: the Weston Road apartment and the accused Benjamin; the seven kilo box of cocaine and the accused Morris; the Sherway Gardens condominium unit and the accused Brissett.

(ii) The Weston Road apartment and the accused Benjamin

[15] A team of six Drug Squad surveillance officers and two detectives set up at 3101 Weston Road, and at apartment 1004 inside the building, at about 1:00 pm on January 24, 2014. Some three hours later, at about 4:05 pm, a taxi pulled up at the front of the building. The taxi can be seen from the building’s video surveillance camera which is situated in the front lobby, where it points out the front doors. The surveillance video was later seized by the police. There does not appear to be any passenger in the taxi.

[16] At 4:07 pm, the accused Benjamin came down to the lobby in the building elevator, exited through the front door of the building, went directly to the taxi, opened the front passenger door, retrieved a white Aldo shopping bag from the taxi, and returned to the lobby with the bag. The taxi immediately pulled away. There was no communication between Benjamin and the taxi driver. This entire incident is captured on the building surveillance video and it was also witnessed by D.C. Goulah, who was in the lobby near the elevators. The surveillance video shows the incident happening very quickly, with no hesitation or inquiry on the part of Benjamin.

[17] Upon returning to the lobby, Benjamin went into the mail room. He can be seen looking down at the bag while walking into the mail room. After a brief time in the mail room, out of sight of the surveillance camera and D.C. Goulah, Benjamin returned to the lobby. He can be seen putting something in the Aldo shopping bag and walking towards the elevators. There is a second surveillance camera pointing at the elevators. Benjamin entered an elevator after three or four other people had entered. D.C. Goulah then entered the same elevator, after Benjamin. D.C. Goulah did not see the floor number button that Benjamin pressed inside the elevator but he saw Benjamin exit the elevator at the ninth floor. D.C. Goulah got off at the tenth floor, in order to observe apartment 1004. D.C. Goulah heard noise from down the hallway at the door to the building stairwell. He then saw Benjamin standing at the door to apartment 1004 with the white Aldo shopping bag. Benjamin used a set of keys to enter the apartment. It was about 4:10 pm.

[18] D.C. Goulah exited the apartment building and Sgt. Teixeira switched places with him, taking up surveillance on the tenth floor. There may have been a gap in the observations of apartment 1004, as the two officers switched places. At 4:25 pm, Sgt. Teixeira observed a man exit apartment 1004. He believed this was the same man who had previously retrieved the white Aldo shopping bag from the taxi. This man exited from the lobby at 4:28 pm and walked to the parking lot, where other surveillance team members observed the man talking to the occupants of two parked cars, a Hyundai and a Ford Explorer. At 4:30 pm, the man re-entered the apartment building through the front lobby door and returned to apartment 1004 at 4:32 pm, where Sgt. Teixeira again observed him. The surveillance video in the lobby shows a man exiting the building at 4:28:22 pm and re-entering the building at 4:29:42 pm, consistent with the observations of the police surveillance team. However, this man is not the accused Benjamin as he is dressed differently. He can be seen speaking on a cell phone as he exited the building. He is wearing a black leather jacket.

[19] At 4:57 pm, the two male occupants of the Hyundai and the Ford Explorer got out of their parked cars. They walked into the 3101 Weston Road apartment building at 4:59 pm. The man from the Hyundai was later identified as Bernard Brissett. The man from the Ford Explorer has not been identified. They did not appear to have a key fob as they used the buzzer to enter the apartment building. Sgt. Teixeira observed these two men enter apartment 1004. Bernard Brissett was carrying an Adidas messenger bag with a strap over his right shoulder. These two men can be seen on the lobby surveillance video. Bernard Brissett is the younger brother of the accused, Everald Brissett.

[20] At 5:10 pm, the unknown man from the Ford Explorer was observed leaving apartment 1004. He was carrying a letter-sized envelope in his hand. It was about two inches thick. This man can be seen on the video surveillance in the lobby with the thick white envelope in his hand. The police believed that it may contain money. The man walked to the Ford Explorer in the parking lot and drove away at 5:11 pm. The police surveillance team did not follow him.

[21] At 6:42 pm, Bernard Brissett and another man were observed leaving apartment 1004. The other man was later identified as the accused Morris. Bernard Brissett was carrying the same Adidas shoulder bag that he had been carrying when he entered apartment 1004. That bag was later searched by the police and found to contain $4,000 in Canadian cash. Morris was carrying a grey plastic shopping bag. That bag was later searched and found to contain full bottles of fruit juice. The two men exited the building at 6:46 pm. It was now dark outside. This was all captured on the video surveillance cameras in the lobby. Bernard Brissett can be seen on his cell phone as he and Morris exited the Weston Road building.

[22] Bernard Brissett and the accused Morris both got into the Hyundai in the parking lot and drove away. The surveillance team followed them to the condominium building at 205 Sherway Gardens. I will return to this part of the narrative below, when summarizing the evidence relating to Morris.

[23] After obtaining a search warrant, the police searched apartment 1004 at 3101 Weston Road, beginning at 3:09 am on January 25, 2014. It is a two bedroom apartment and the lease is in the name of the accused Benjamin. No one was present at the time of the search. The police found the following items:

• There were four separate digital scales found in the kitchen, including a one kilo scale;

• A brown leather Armani jacket was found in the hall closet. It has a distinctive shearling collar. There were three separate knotted baggies containing cocaine in an inside pocket of the jacket. The cocaine was cut with phenacetin and it weighed 84.2 grams;

• An empty white Aldo shopping bag was found in the living room, consistent with the bag that Benjamin retrieved from the taxi earlier that day. There were several photographs of Benjamin in the living room. On top of the back of a couch in the living room, the police found two grey plastic grocery bags. The bags were not open. Inside one grocery bag was 83.11 grams of marijuana in a vacuum sealed plastic bag. Inside the other grocery bag were two clear plastic baggies containing 28.12 grams and 226.10 grams of cocaine cut with phenacetin;

• One of the two bedrooms in the apartment had appropriate furniture and personal items and a number of pieces of mail in the name of Howard Benjamin, who is the brother of the accused Benjamin. There was no relevant evidence or any contraband found in this bedroom;

• In the other bedroom, which is admittedly the accused Benjamin’s bedroom, there was also appropriate furniture and personal items. The police found mail and identification in the accused Benjamin’s name in this bedroom. They also found a great deal of contraband. In the corner of the bedroom closet, under some clothing, they found the following: 131.68 grams of cocaine in a large clear ziplock baggie with two smaller baggies inside; another clear baggie with 48.2 grams of cocaine; an H+M shopping bag containing a grey plastic bag with another clear plastic bag inside containing 304.2 grams of phenacetin; and a grey plastic grocery bag containing 114.6 grams of marijuana in four tubes. Also in the closet under some clothing was another digital scale. In the second drawer of the bedroom dresser, the police found a black shopping bag containing a white and blue shopping bag with four clear baggies inside containing 934.16 grams of cocaine cut with phenacetin.

(iii) The cardboard box and the accused Morris

[24] Four members of the police surveillance team and two detectives followed the Hyundai with Bernard Brissett and the accused Morris inside, to 205 Sherway Gardens. It is part of a high-rise condominium complex located opposite the Sherway shopping mall. There is a half circle driveway in front of the lobby doors. The Hyundai, with Bernard Brissett driving, parked in this driveway behind a taxi that was already parked in front of the entrance to the condominium complex. It was 6:57 pm and the driveway was busy. It was a very cold winter evening.

[25] The police observed Morris exit the front passenger seat of the Hyundai and walk towards the parked taxi. The trunk of the taxi was popped open by the taxi driver from his seat inside the taxi, as Morris approached. Morris then fully opened the trunk, reached in, and removed a large cardboard box. The box’ dimensions were 2 feet x 2 feet x 2 feet. It had some apparent weight as Morris carried it with both hands underneath. There was no passenger in the waiting taxi and there was no apparent verbal communication between Morris and the taxi driver, as the taxi’s windows were closed. The taxi left immediately after Morris had removed the box from the trunk.

[26] Morris entered the condominium complex through the two front doors that enclose a vestibule. Inside the outer front door there is a directory of building residents. A surveillance camera is located at this point, between the outer and inner front doors. The police subsequently seized this surveillance video. It shows Morris entering with the box. There is a security fob reader in the vestibule between the two front doors. Two persons were standing at the inner door giving onto the lobby and they held it open for Morris. D.C. Goulah followed Morris into the building. The common lobby leads to two separate condominium towers. To the left is 205 Sherway Gardens and to the right is 215 Sherway Gardens. Morris turned to the left and proceeded down a hallway towards interior doors, which require a security fob and which lead to the elevators. There is another surveillance camera at this point and the seized video shows Morris approaching the doors carrying the large cardboard box. Morris does not appear to be “surveillance conscious” in the various excerpts seized from the building’s video surveillance cameras.

[27] At this point, the police believed that they had sufficient grounds to arrest Morris. Aside from the tip provided by the confidential informant, the police associated the two suspicious taxi deliveries with drug trafficking, based on their experience. It was D.C. Goulah who carried out the arrest at 7:03 pm, before Morris entered the building elevators. Morris was compliant. He dropped the box and went to the ground. He had a set of keys with a fob in his hand and D.C. Goulah seized the keys and fob. The cardboard box was made an exhibit. It is a shipping box from the “UPS Store.” At some point, the box had a shipping waybill in an exterior plastic pouch and its flaps had been sealed with clear plastic tape, at both the top and the bottom. At the time of the arrest, there was no shipping waybill in the pouch and the tape had been cut so that the flaps could be opened. Like most conventional cardboard boxes, it has four flaps at the top and bottom. The four flaps intersect when they are closed so that the inside contents of the box are generally not visible. The surveillance video shows that the flaps at the top of the box were closed, although not sealed with tape, as Morris carried the box into the building and walked towards the elevators. D.C. Goulah confirmed that this is how he found the box on arrest. You could not see inside the box unless you opened the flaps. At most, there was a small crack between the closed flaps.

[28] After arresting Morris, D.C. Goulah opened the four flaps at the top of the box. Inside the box were two large clear vacuum sealed plastic bags containing what appeared to be cocaine. There was no packing material on top of the cocaine. It weighed seven kilos. D.C. Goulah searched Morris. He had a small amount of cash and no cell phone on his person. D.C. Goulah gave the keys and fob that he had seized from Morris to Det. Zeleny, who had now arrived in the building lobby with the other plainclothes surveillance officers. The seven kilos of cocaine inside the two large clear plastic bags were individually wrapped in seven vacuum sealed bags.

[29] At this point, Sgt. Teixeira and Sgt. Miranda returned outside to the driveway and arrested Bernard Brissett, who was still in the Hyundai. He had driven the car around the busy traffic circle, apparently looking for a parking spot. It was 7:05 pm when Sgt. Teixeira took the car keys out of the ignition and arrested Bernard Brissett. He gave the car keys to Sgt. Miranda who then searched the Hyundai and searched Bernard Brissett. Sgt. Miranda found $5,000 in Bernard Brissett’s jacket pocket and another $330 in his jeans. He also found three cell phones on Bernard Brissett’s person and he found another set of keys on the front passenger seat of the Hyundai. One of these keys had a purple plastic cover. Sgt. Miranda also found a rental agreement for the Hyundai in the car in Bernard Brissett’s name. Finally, he found the Adidas shoulder bag and the grey plastic shopping bag that Bernard Brissett and Morris had been carrying when they left the Weston Road apartment. Both of these bags were in the back seat of the Hyundai. The Adidas shoulder bag contained $4,000 in Canadian cash, as well as a laptop computer. The $5,000 and $4,000 found by Sgt. Miranda during these searches of Bernard Brissett and his shoulder bag were organized in separate $1,000 bundles or “stacks,” wrapped in elastics. The grey shopping bag belonging to Morris was not seized. It contained full bottles of fruit juice. Bernard Brissett’s cash and multiple cell phones were not in plain view.

[30] Inside the condominium building lobby, after D.C. Goulah advised Morris of the arrest and his right to counsel, the following exchange occurred:

Q. Do you have a lawyer?

A. No.

Q. Would you like to speak to a free lawyer, duty counsel?

A. Officer, my friend just asked me to move this box up to his apartment. I did not even know what was in it.

D.C. Goulah cautioned Morris and asked him if he would like to speak to the detectives in charge of the investigation. Morris replied, “Yes.”

[31] D.C. Goulah then handed Morris over to Det. Zeleny, who asked whether Morris understood why he was under arrest. Morris replied:

A. Yes sir, but I was just helping him out. He told me to get the box from the cab and bring it to the apartment.

Q. Who is him? The driver of the car you were in?

A. Yes.

Det. Zeleny then asked Morris about the keys found in his hand on arrest:

Q. Whose keys are these?

A. His. He gave them to me (referring again to the driver, Bernard Brissett).

Q. What apartment were you bringing the box to?

A. I’m not exactly sure. It’s on the ninth floor just off the elevator. I can show you.

Q. What were you supposed to do with the box?

A. Just leave it inside the door.

Q. And who is in the apartment now?

A. I’m not sure if someone is there or not.

Q. Whose place is it?

A. I’m not sure. I’ve only been there a few times. Every time I met a guy named “Bulldog.” I think he’s coming later on.

Q. Which way does the apartment face?

A. I’m not sure. I can show you it.

Q. Any idea if someone or other people are there right now?

A. There could be. I’m not sure, sir.

Q. Will you point out the apartment to me?

A. Yes, sir. I don’t need this. I was just doing a favour.

[32] Morris proceeded to take the officers to unit 904. The officers used the fob to gain access to the elevator to the ninth floor and they used the key to gain access to the unit. Det. Backus and Sgt. Teixeira entered the unit at 7:24 pm and made sure there was no one inside who was awaiting the delivery of cocaine or who could destroy evidence. Morris had referred to a person named “Bulldog” who was usually in the unit and the arrest in the lobby had been very public. The officers believed there were exigent circumstances justifying a warrantless “protective sweep.” See: R. v. Darteh, 2014 ONSC 895 at paras. 196-8, aff’d 2016 ONCA 141. They did not find anyone inside the unit. They opened doors and checked each room, each closet, and some of the larger cupboards, to ensure that no one was hiding. They did not search for evidence. They saw a large number of suitcases in various locations but did not search inside the suitcases. One stack of suitcases in the den area was covered with a sheet. They also saw two buckets of phenacetin in the hall closet. It took about a minute to “clear” the unit.

[33] Four of the officers then waited inside the unit, in order to secure it and await the search warrant application. I will return to this part of the narrative below, when summarizing the evidence relating to the accused Everald Brissett.

[34] Morris was escorted to 22 Division. Some five and a half hours after his arrest, Det. Zeleny took a statement from Morris, at 12:42 am on January 25, 2014. The statement was videotaped and audiotaped and Morris was affirmed to tell the truth by a commissioner of oaths, after the usual KGB cautions concerning public mischief and obstruct justice. He was also cautioned again about the right to counsel and the right to remain silent.

[35] Morris stated that he met Bernard Brissett that evening at the Weston Road apartment, that Bernard Brissett had emerged out of a bedroom at the apartment, that Bernard’s brother Everald was present, as well as a man named “Pretty.” Morris had known the two Brissett brothers and “Pretty” for about six months. The Weston Road apartment belonged to “Pretty.” Various people would go there on Fridays after work for “fish fries.” Morris had not seen drugs in the apartment other than small amounts of marijuana being smoked. Morris explained that he had also been to the Sherway Gardens unit on three prior occasions, always with Bernard Brissett. On this particular occasion, Bernard Brissett asked him to deliver the box to the ninth floor unit and just leave it inside the door. On the three previous occasions, a big man named “Bulldog” was always in the unit. He is about 6’7” tall, has a scar on the right side of his face, and a Jamaican accent. Morris had been in the Sherway Gardens unit with the two Brissett brothers and “Bulldog” on one of these prior occasions. On this one occasion, the two Brissett brothers and “Bulldog” had gone into a room together. Morris remained outside in the living room and did not see what was going on in the other room. He wondered whether they “did not want me to see what was going on in the room.” This was the only time Morris saw the accused Everald Brissett at the Sherway Gardens unit. Morris was surprised that the box he was delivering contained cocaine.

[36] Det. Zeleny concluded the statement at 1:16 am and thanked Morris for his “candidness.” Det. Zeleny agreed, in cross-examination, that Morris appeared to be “sincere.” Det. Zeleny has been a police officer for 29 years.

(iv) The Sherway Gardens condominium unit and the accused Everald Brissett

[37] By 7:25 pm on January 24, 2014, unit 904 at 205 Sherway Gardens had been cleared and secured by the police. It was not until 2:00 am on January 25, 2014 that the search warrant was granted. During the intervening six and a half hours, between two and four police officers remained inside unit 904, with the entrance to the unit locked. They generally sat in the living room and kitchen area and completed notes and paperwork for the case. It is a small unit with only one bedroom and a den area off the living room.

[38] At 11:05 pm there were four officers inside the unit, namely, Sgt. Teixeira, Sgt. Miranda, Det. Zeleny and Det. Backus. The key and fob, obtained from Morris on arrest and used by the officers to enter the unit, was in the custody of Sgt. Teixeira. The officers all had the impression that the unit was being used as a “stash house,” as there was little food or clothing, there were a large number of suitcases stacked in the den, in the bedroom closet, and on the balcony, and there were two buckets of phenacetin in the hall closet.

[39] At 11:05 pm, the officers heard keys in the lock at the door to the unit, and three of the four officers moved quickly to the door. It is not disputed that there were two persons at the door to the unit, namely, the accused Everald Brissett and his cousin Ervin Malcolm. There is video surveillance of them entering the condominium building, which I will discuss in greater detail below. However, there is dispute as to which one of the two had the key that was being used in an attempt to enter unit 904 at 11:05 pm. Accordingly, the four officers were questioned closely on what they observed at the door to the unit.

[40] Sgt. Teixeira testified that it was the accused Brissett who had the keys and who was trying to open the door. He heard the key in the deadbolt, the door opened less than halfway, he made brief eye contact with Brissett and said “police.” The officers were not wearing police vests. Sgt. Teixeira did not get to the door first. He believed that Sgt. Miranda got to the door first and that he (Sgt. Teixeira) was standing beside Sgt. Miranda. Brissett was in front of Malcolm at the door, according to Sgt. Teixeira, and he looked shocked and confused. The two men both turned and ran, with Malcolm ahead of Brissett. As Brissett ran, he was chased by Sgt. Miranda, who was in front of Sgt. Teixeira. As Sgt. Teixeira followed, he saw Brissett drop the keys. The chase was brief, lasting less than ten steps before Sgt. Miranda took Brissett to the ground. Sgt. Teixeira did not actually see Brissett unlock the door to the unit but it was Brissett who was in front and who opened the door, and it was Brissett who dropped the keys in the hallway outside the unit. Sgt. Teixeira seized the keys from the floor and gave them to Sgt. Miranda, who was searching Brissett incident to arrest. The two detectives, Zeleny and Backus, pursued and arrested the other man, Ervin Malcolm. Sgt. Teixeira then searched Malcolm incident to arrest and seized $1,245 in Canadian cash, a small amount of marijuana, a couple of cell phones, and some keys. The keys, as well as an attached remote or fob on the key ring, were for a Mazda car. There was also a grey condo fob, which Sgt. Teixeira later tried on the hotel security system at the front door to the building, and it did not work. He identified a photograph of these items seized from Malcolm.

[41] Sgt. Miranda’s account was that he heard keys turning in the deadbolt lock and saw the door to the unit open inwards as he approached. There were two males standing at the door. The taller of the two males, wearing brown boots and a toque, was the one in front standing closer to the door frame and taking the lead. Sgt. Miranda said, “Toronto police” and the two males turned and ran. Sgt. Miranda chased and tackled the taller male wearing the toque and brown boots. This man was then arrested by Sgt. Miranda. He did not struggle. He identified himself as Everald Brissett. The other male, Ervin Malcolm, was arrested by the two detectives.

[42] Det. Zeleny was the third officer who heard a key in the door and then moved towards the door. He thought that he was the first of the three officers to reach the door. There were two males at the door. Det. Zeleny testified that the accused Everald Brissett was the first of the two men at the door and that Ervin Malcolm was behind Brissett, as the door opened. The two men turned and ran in slightly different directions, after the officer said “Police.” The men appeared to be startled. Brissett went to the right of the door in a direction that leads down a hallway. Ervin Malcolm went directly across the hallway towards the elevators. Det. Zeleny chased Malcolm and arrested him. The two sergeants chased and arrested Brissett.

[43] Det. Backus was the last of the four officers to go to the door. He did not see either the accused Brissett or his cousin Ervin Malcolm standing at the door as it opened. The other three officers were ahead of him. The two sergeants arrested Brissett, while Det. Zeleny arrested Malcolm. Malcolm had run towards the elevators and Brissett had run towards the hallway to the right of the door. The exit stairwells on the ninth floor are not located along this hallway where Brissett ran.

[44] None of the other three officers saw the accused Brissett drop the keys in the hallway. Only Sgt. Teixeira gave this evidence. However, Sgt. Miranda testified that Sgt. Teixeira handed him a set of keys, after the arrest of Brissett, and advised that the keys were “thrown to the floor” while Sgt. Miranda was arresting Brissett. Sgt. Miranda searched Brissett incident to arrest and seized $1,785 in Canadian cash. Sgt. Miranda still had the set of keys that he had seized earlier from the front passenger seat of Bernard Brissett’s Hyundai. He had secured them in a property bag and was keeping them in his vest, so that he could try them at some point in the door to unit 904. He was unsure whether he ever did try them.

[45] Sgt. Miranda had the role of photographing and videotaping for the team. At 11:27 pm, he tried the set of keys that Sgt. Teixeira had given him in the door to unit 904. They fit the door. Sgt. Miranda took a photograph of this key in the door. There is purple plastic wrapped around the key, as well as a grey security fob and nail clippers attached to the key ring. Sgt. Miranda gave the keys back to Sgt. Teixeira. All of the property seized from the accused Brissett was photographed together by Sgt. Miranda, including this set of keys and fob.

[46] Sgt. Teixeira confirmed the above evidence concerning the description of the key and key ring that he saw the accused Brissett drop in the hallway. He also confirmed the testing and photographing of that key in the door to unit 904 by Sgt. Miranda.

[47] Sgt. Miranda then received a second set of keys from Sgt. Teixeira, who described these keys as the ones seized from Morris on arrest. They were a set of three keys on two key rings and they had a black remote or fob attached to one of the key rings. Sgt. Miranda tested this key in the door to unit 904 and it also worked. He photographed this second key in the door lock and then returned the set of keys and fob to Sgt. Teixeira.

[48] The search warrant for the Sherway Gardens condominium was granted at 2:00 am. At 2:12 am, Sgt. Miranda videotaped the state of the unit prior to the search. Then the officers searched the unit. They made the following seizures:

• There were about 40 suitcases stacked in the den area off the living room, on the balcony, and in the bedroom closet. They were all empty except for the three that were in the bedroom closet. All three of these suitcases in the bedroom closet contained cocaine in vacuum sealed packages hidden in the suitcase liners. There were 5.24 kilos in five vacuum sealed bags in one suitcase, 4.81 kilos in five ziplock bags in a second suitcase, and 5.37 kilos in the third suitcase in five separate vacuum sealed bags;

• Two buckets of phenacetin were found in the hall closet. One bucket was full and sealed and weighed ten kilos. The other bucket was open and half full and weighed 4.64 kilos;

• There were no shoes and the only clothing in the unit was a number of extra large City of Toronto emergency vests hanging in the hall closet and the bedroom closet;

• In the kitchen, the officers found a lease for the unit in the name of one “Omar Brown.” He was never identified. There was no food other than a bag of rice in the cupboards, no plates in the cupboards, and very little food in the refrigerator. There was one bottle of liquor and an empty beer bottle on the kitchen counter. There were a couple of bottles of sauce in one kitchen cupboard. The manufacturers’ original documents were still on the refrigerator and in the dishwasher;

• Also in the kitchen, the officers found a large kilo size scale in a cupboard and a dismantled wooden cocaine press in another cupboard. Under the sink, they found acetone, a vacuum sealer, and a roll of sealing plastic. They also found several packages of carbon paper, which can be used to bypass X-ray machines;

• In the bathroom, there were toothbrushes and toothpaste but they were all still in their packages, suggesting to the officers that the unit had been “staged.”

(v) The defence evidence relating to the accused Courtney Benjamin

[49] The accused Benjamin testified in his own defence. He is 49 years old and has worked in his brother Jeffrey’s business repairing electronic equipment for the last 10 years. He would make about $300 a week. He was born in Jamaica and came to Canada in 1981. He is a permanent resident of Canada.

[50] Benjamin testified that he was the tenant at the relevant time in apartment 1004 on the 10^th floor of 3103 Weston Road. He paid $1000 a month in rent and shared the apartment with another brother, Howard. It was a two bedroom apartment and they each had a bedroom. They shared the rent. Benjamin has a daughter who was 6 years old at the relevant time. She lived with her mother in a separate unit on the 15^th floor of the same apartment building. Benjamin was no longer in a relationship with the child’s mother, but he paid $150 to $200 a month in child support. He had a girlfriend who lived at Sheppard and Jane at the relevant time.

[51] Benjamin had traveled back to Jamaica in June of 2013. He had also traveled to Barbados for 10 days in July of 2013 with a girlfriend. Finally, he traveled to Jamaica at Christmas, on December 23, 2013, and stayed for a month until his return to Toronto on January 23, 2014. Benjamin’s passport and his airline ticket itinerary were produced as exhibits at trial, confirming the above travel, and it was not seriously disputed by the Crown. He paid for this travel himself but when he was in Jamaica he would stay with family.

[52] Benjamin would host “fish fries” at his apartment on Fridays after work. It is a Jamaican tradition and various friends would attend. They would play music, drink and eat fried fish. Everyone would contribute some money and Benjamin would buy the drinks and the fish and would cook it. As many as 20 people could attend these events. When he was away there would be no “fish fries” as he was always the host. Benjamin met the co-accused Morris at these Friday “fish fries.” Morris was known as “Short Man,” or as “Dunce Cap” on occasion, as he was not regarded as being very bright. These kinds of “pet names” are common in Jamaica.

[53] Benjamin’s brother and co-tenant Howard is a religious Rastafarian. He tries to lead a moral life. He would not be involved with cocaine. Howard had a friend named “Tony” who came over to the apartment frequently, including at the Friday “fish fries.” Benjamin knew “Tony” well but was not sure whether “Tony” was his real name or a “pet name.” Benjamin did not know Tony’s last name, his address, his phone number, or where he worked. He knew the building where Tony lived. When Benjamin traveled to Jamaica at Christmas in 2013, his brother Howard came with him, as they were attending various family events. Their apartment in Toronto would have been left vacant. However, prior to their departure, Tony asked if he could stay in their apartment while they were away. Tony was having difficulties with his fiancée, as he had multiple girlfriends and his fiancée was becoming suspicious. Howard was opposed to Tony sleeping in his bed while they were away, on moral grounds. So Benjamin agreed that Tony could use his bedroom during the month that they were away in Jamaica.

[54] Benjamin testified in-chief that his return flight on January 23, 2014 left Jamaica at 7:00 pm and arrived in Toronto at about 11:00 pm. However, in cross-examination, he was shown the flight itinerary and he agreed that he was mistaken about these times and that his return flight in fact left Jamaica at 3:22 pm and arrived in Toronto at 7:30 pm. He took a taxi home and would have been back in his apartment by about 8:30 pm on January 23, 2014.

[55] Benjamin’s brother Howard would work for about eight months of the year at a company in Toronto that manufactures landscaping stones. Howard would then spend three or four months in Jamaica during the winter. It was understood that Howard would be staying in Jamaica and would not return to Toronto with Benjamin on January 23, 2014. It was also understood that Tony could only stay in their apartment until January 23, 2014, or that he would leave before then if he managed to resolve his difficulties with his fiancée. Benjamin had no contact with Tony during the month that he was in Jamaica, but Tony knew that Benjamin was returning on January 23, 2014.

[56] When Benjamin arrived at his apartment that evening, Tony was still there. Tony said that his relationship with his fiancée was still uncertain and that he still needed a place to stay. Benjamin allowed Tony to stay in his brother Howard’s bedroom. However, Tony did not immediately move his things out of Benjamin’s bedroom. Benjamin agreed that he put his luggage from the trip to Jamaica in his own bedroom and it was found in his bedroom, when the police entered with a search warrant and videotaped the premises at about 3:00 am on January 25, 2014. Neither Benjamin nor Tony, or anyone else, was present in the apartment at the time of the search.

[57] Benjamin had called a friend named Blacks on his way home from the airport. Blacks told Benjamin about a birthday party that evening at a Jamaican pub and restaurant known as “Front Line,” near Jane and Wilson. After Benjamin spoke with Tony at the apartment, he called Blacks again. Blacks drove over, picked up Benjamin, and they went out together to the party. Benjamin called his girlfriend from the party and went over to her apartment, where he ended up staying the night.

[58] The next morning, on January 24, 2014, Benjamin returned home to his apartment. Tony was still there. They talked about Tony’s circumstances and it was agreed that Tony could stay in Howard’s bedroom until the end of February but that Tony could not have any girls over, as Howard would not like it. Benjamin talked with Tony for awhile. It was around midday. Benjamin had brought some things back from Jamaica for his cousin Claudette. He called her and she sent her boyfriend over to pick up these things. It was some time after 2:00 pm when the boyfriend came over. He brought some beer and the three men sat and talked and drank beer.

[59] At some point in the afternoon, Tony had gone into the bathroom where he received a call on his cell phone. He called out to Benjamin from the bathroom and asked him to “grab something from downstairs” as “somebody is dropping off something.” Benjamin replied, “Sure” and asked, “What kind of car?” Tony replied that “it is a taxi.” Benjamin asked for money to pay the taxi and Tony replied, “Don’t worry about it.” This conversation took place through the bathroom door. Benjamin assumed that Tony was on the toilet.

[60] The building surveillance video shows Benjamin proceeding from the elevators to the front door, to the taxi, to the mail room, and back to the elevators, as already summarized above, at about 4:05 pm. Benjamin agreed that he went directly to the front passenger door of the taxi, that there was no communication between him and the taxi driver, that he appeared to look down at the shopping bag on his way into the mail room, and that he put his own mail into the shopping bag on his way back to the elevator.

[61] On Benjamin’s way back up to his 10^th floor apartment, there were a number of kids in the elevator. This reminded Benjamin that he needed to see his own daughter, so he pulled out his cell phone to call her mother. At this point, the elevator door opened and he got out. He went to the entrance where his apartment door would have been located and then realized that he was on the ninth floor and that he had exited the elevator on the wrong floor, while distracted and looking down at his cell phone. He took the stairwell up to the tenth floor, returned to his own apartment, and put the white Aldo bag from the taxi down on the floor in the living room by the couch. Tony was now out of the bathroom and was seated in the living room. Benjamin did not take his own mail out of the shopping bag. He simply left the bag with Tony, with the mail still inside the shopping bag.

[62] Benjamin went into his own bedroom and got out some t-shirts that he bought in Jamaica for his daughter. He then went up to her 15^th floor apartment to give her the t-shirts and to visit. He had been back in his own apartment for less than 15 minutes before leaving to visit his daughter.

[63] Benjamin played with his daughter and visited with her mother on the 15^th floor until about 5:20 pm when Claudette’s boyfriend called to ask Benjamin when he was returning to his own apartment. He then returned to his apartment at about 5:30 pm. During this period prior to 5:30 pm, when Benjamin testified that he was absent from his own apartment, the police surveillance team saw a man leave apartment 1004 at 4:25 pm, leave the building at 4:28 pm and speak to the occupants of two cars in the parking lot, and then return to the building at 4:30 pm, as summarized above. This man, who can be seen on the building surveillance video wearing a black leather jacket, was identified by Benjamin in his testimony as Tony.

[64] January 24, 2014 was a Friday and there would normally have been a “fish fry.” However, Benjamin had just returned from Jamaica the previous day and he had not bought any fish. Some people had come by, thinking there was a “fish fry.” Upon returning to his apartment at about 5:30 pm, Benjamin found that Tony and Claudette’s boyfriend were still there and that the accused Morris and Bernard Brissett had also arrived. They were all drinking. According to Benjamin, no one else was present. Bernard Brissett and Morris left at about 6:00 pm. At this point, only Benjamin, Tony, and Claudette’s boyfriend remained in the apartment.

[65] Benjamin left the apartment that evening at about 8:00 pm, together with Claudette’s boyfriend who drove Benjamin over to his girlfriend’s apartment. Benjamin again spent the night with his girlfriend.

[66] The next day, January 25, 2014, when Benjamin returned to his apartment, there appeared to have been a break-in. He spoke to the building superintendent and was told that the police had been there searching for drugs and that the locks had been changed. Benjamin phoned his brother Howard in Jamaica, obtained Tony’s phone number, and called Tony. They had a discussion about where Tony was staying and about drugs. Benjamin has not seen or spoken to Tony in the three years since this one telephone call. Tony’s phone has been turned off. Benjamin went to Tony’s fiancée’s apartment and spoke to her and left his phone number with her.

[67] Benjamin called his lawyer, she learned of the arrest warrant for him, and he turned himself in to the police. Benjamin testified that the cocaine and marijuana found by the police in his apartment did not belong to him and he denied any knowledge of it. He also denied knowledge of the brown leather jacket with a shearing collar that was found hanging in his hall closet. He had never seen it before. Benjamin testified that he had never used cocaine with Tony or discussed cocaine with Tony. He never allowed anyone to traffic drugs from his apartment and never indicated that he was “okay” with drug trafficking. He would occasionally buy small half ounce or quarter ounce amounts of marijuana and smoke it. He had no knowledge of the four digital scales found in his kitchen or the one digital scale found in his bedroom closet, except that one of the scales in the kitchen was his. He never saw any drug trafficking in his apartment. On occasion, people would bring their own marijuana to the “fish fries” and smoke it. He had no explanation for how the drugs got in his apartment unless Tony left them.

(vi) The defence evidence relating to the accused Gary Morris

[68] The accused Morris testified in his own defence. He is 48 years old. He was born in Jamaica and left school at age 16. He worked for 25 years with a construction firm in Jamaica doing ceramic, marble, and vinyl tiling. He has no criminal record.

[69] In June 2013, Morris came to Canada as part of a farm worker program. He worked for Hunter Farms in Niagara-on-the-Lake, harvesting peaches and grapes. He lived in a trailer on the farm with other Jamaican farm workers. At the end of the contract, he was to return to Jamaica. However, he wanted to stay in Canada. He phoned his brother who lived in the United States and who knew people in Canada who could help Morris. This was about a week before Morris was to return home to Jamaica. His brother called back in September 2013, just after the Hunter Farms employer had dropped Morris off at the Toronto airport for the return flight to Jamaica. His brother told Morris that a man named Everald Brissett would pick him up in a blue Honda at the airport. This was all arranged at the last minute but Morris was grateful when the accused Brissett arrived and picked him up at the airport.

[70] Brissett took Morris to a home in Brampton where the landlady, named Olive Jones, rented Morris a basement apartment. The landlady also helped him to find work with a local contractor installing tiles. He is still working for this contractor. Morris had no friends in Canada and it was apparent to him that a local network of people had intervened to help him, as a result of his brother’s contacts. He felt that he owed these people a lot.

[71] Morris next saw the accused Brissett in late September 2013, when Brissett came by the Brampton house and invited Morris to a “fish fry.” This is a Jamaican tradition on Friday afternoons after work. Brissett drove him to the “fish fry” in the Honda and Morris stayed until well into the night. There were about 25 people present, Morris met many new friends from Jamaica, and he thoroughly enjoyed himself. Morris met Everald Brissett’s brother Bernard Brissett at the “fish fry.” Everald asked his brother Bernard to give Morris a ride home to Brampton and Bernard Brissett drove Morris home that night. Morris did not have a car and he was dependent on getting rides from friends or on public transit.

[72] Morris also met a man known as “Pretty” at the “fish fry.” Pretty is admittedly the accused Benjamin and the “fish fry” was held at his apartment. Morris attended a second “fish fry” at the apartment a few weeks later, in mid-October of 2013. He was working in the area of the apartment building, near Weston Road. It was a Friday and he asked his boss to drop him off after work. Morris called Bernard Brissett, who met Morris at the Weston Road apartment building and took him upstairs to the “fish fry.” There was a smaller group of about nine persons present on this second occasion. Benjamin was there and Everald Brissett arrived at some point. Once again, Morris asked various people for a ride home and Bernard Brissett agreed to take him. It was about 11:00 pm when they left. On this occasion, however, Bernard Brissett did not drive Morris directly home. He told Morris that he had to make a stop at “Sherway.” He did not explain the reason for this stop. Bernard Brissett parked his car at the Sherway Gardens building and took Morris up to unit 904. Bernard Brissett had a security fob that he used to gain access to doors in the building. Morris was not sure whether the security guard at the front door let Bernard Brissett into the building.

[73] Bernard Brissett had a key and he just walked into unit 904. Morris was introduced to a man named “Bulldog” who was inside the unit. Bulldog was dressed in normal street clothes. He was very tall and muscular. He gave Morris a beer and Morris sat in the living room. Bulldog and Bernard Brissett then went into the bedroom for about 15 minutes while Morris drank his beer. When Bernard Brissett emerged from the bedroom, he gave Morris a ride home to Brampton.

[74] Bernard Brissett did not tell Morris the reason for this meeting with Bulldog in the bedroom at the Sherway unit. Morris did not see a stack of suitcases in the Sherway unit. He did not see any drugs in either the Sherway Gardens unit or the Weston Road apartment, except that some people smoked small amounts of marijuana at the “fish fries.” He never saw any white powder in either of these places, which is what he heard cocaine looked like. He had never personally seen or used cocaine.

[75] There was a third “fish fry” that Morris attended a couple of weeks later, around early November of 2013. Once again, he was working in the area of Weston Road on a Friday, and his boss dropped him off after work. He felt that he now had a standing invitation to Benjamin’s “fish fries” and so he did not call anyone in advance. He waited in front of the building until someone he knew arrived. It was Bulldog, who he had not seen at the previous “fish fries” but who he had met at the Sherway Gardens unit. Bulldog took Morris up to Benjamin’s apartment. There were only three or four people present. Neither Benjamin nor Everald Brissett was there when Morris first arrived. Bernard Brissett arrived later in the evening, as it became busier. Once again, he gave Morris a ride home. As on the previous occasion, Bernard Brissett told Morris that he had to make a stop at “Sherway.” Bernard Brissett used a security fob at the building’s inner doors as they made their way up to unit 904, as he had on the previous occasion. And once again, Bulldog was present inside the unit when they arrived, dressed in ordinary street clothes. Morris asked for a beer and Bernard Brissett and Bulldog went into the bedroom for 10 or 15 minutes, as they had on the previous occasion. When they came out of the bedroom, Bernard Brissett gave Morris a ride home.

[76] The fourth and last “fish fry” that Morris attended at Benjamin’s Weston Road apartment was on the day of his arrest, that is, on January 24, 2014. Morris was working in the area of Keele and Finch. He normally finished work at 4:00 pm. He had bought his lunch and some imported fruit juices at a grocery store in the area. He was taking the juices home with him in a grocery bag. As on previous occasions, his boss dropped him off at the Weston Road apartment building and he waited outside. Someone who he knew but who he could not recall arrived at the building. They went up together to Benjamin’s apartment. It was about 5:00 pm. There were only three or four people present when he first arrived but a couple more arrived shortly afterwards. There were about six people present in the apartment.

[77] Morris sat down and drank a beer in the living room. He saw Bernard Brissett come out of a bedroom. He then saw the accused Benjamin come out of the same bedroom. The door to the bedroom had been closed, as if those inside wanted privacy. It is a relatively small two bedroom apartment. Morris also saw the accused Everald Brissett arrive at the apartment. As a result, the two Brissett brothers and Benjamin were all present on this occasion. Benjamin was not present in the apartment the entire time. Morris understood that Benjamin had a young daughter who lived in a separate apartment in the same building.

[78] At about 6:45 pm, Bernard Brissett said he was leaving. Morris had asked him for a ride home but this was earlier than they usually left. Morris wanted to stay longer but he also wanted to get a ride home, so he decided to leave with Bernard Brissett. As on the two previous occasions, Bernard Brissett said that he was stopping at “Sherway.” However, on this occasion, Bernard Brissett stopped his car behind a taxi in the roundabout in front of the Sherway Gardens building. He handed a key and fob to Morris and asked Morris to pick up a delivery from the taxi and take it upstairs to unit 904. Bernard Brissett explained how to use the key for the apartment and the fob for the building door. He simply told Morris, “Go to the taxi man and get the delivery.” Bernard Brissett explained that there was no parking in the driveway, that it was busy in the roundabout, and that he had to stay with the car. Morris had never been asked to do this kind of task before but, in the circumstances, he did not ask Bernard Brissett why he was not making the delivery himself. Morris did not suspect that Bernard Brissett was involved in some illegal activities, in spite of the closed door meetings that he had seen in unit 904.

[79] As Morris walked towards the taxi, he saw the driver gesture towards the back of the taxi and the driver popped the trunk. Morris assumed that the delivery was inside the trunk so he opened the trunk and lifted out the cardboard box. He did not know what was in the box and it was not his delivery, so he did not look inside. Morris took the box into the Sherway building and was arrested.

[80] Morris’ oral statement to Det. Zeleny at the elevators was put to him in cross-examination and he agreed that he was to leave the box “inside the door” to unit 904, that he was “not sure” whether anyone would be there, and that he was “not sure” who unit 904 belonged to. He associated the unit with Bernard Brissett and with Bulldog, and he thought that Bulldog might be coming on this occasion simply because Bulldog had always been there. No one had said that Bulldog would be there and no one had said that the unit belonged to Bulldog. Morris agreed that there was some furniture in the unit but there was no food and no plates in the kitchen and on one was ever cooking in the unit. There was no sign that anyone lived there, unlike the Weston Road apartment where he assumed Benjamin lived.

[81] Morris gave his evidence in-chief and was cross-examined by one defence counsel on January 17, 2017. He testified that he had been to the Sherway Gardens unit on three occasions and that it was only Bernard Brissett and Bulldog who were present on these occasions, as summarized above. On the morning of January 18, 2017, Morris was cross-examined by counsel for Everald Brissett. Morris agreed that he told Det. Zeleny in his KGB statement that the accused Everald Brissett had been to the Sherway Gardens unit on one occasion when Morris was present. This was the truth and Morris had simply forgotten this when testifying in-chief. On this one occasion, Bernard Brissett was giving both Morris and Everald Brissett a ride home from the “fish fry,” because Everald Brissett’s license was suspended. All three of them stopped at the Sherway Gardens unit on the way home. Morris and Everald Brissett stayed in the living room while Bernard Brissett and Bulldog went into the bedroom. Everald Brissett did not go into the bedroom.

[82] Morris was then cross-examined by the Crown. He testified that the one occasion when Everald Brissett was present at the Sherway unit must have been after the second “fish fry,” sometime in October 2013, as he remembered Everald Brissett being present at that particular “fish fry.” Morris also reiterated his above evidence that it was only Bernard Brissett and Bulldog who went into the bedroom at unit 904 and that Everald Brissett did not go into the bedroom with them.

[83] The Crown then suggested to Morris that he had been given a ride home the previous night after court by Everald Brissett and by one of Brissett’s brothers. Morris agreed with this suggestion. His terms of bail prohibit him from “communication in any way” with his co-accused. Everald Brissett’s terms of bail prohibit him from “communication or association” with his co-accused. Morris testified that he did not speak with Everald Brissett on this ride home after court.

[84] The Crown then played and re-played the KGB statement in which Morris told Det. Zeleny that on one occasion he, Bernard Brissett and Everald Brissett “went up there, saw Bulldog up there,” and that “they all went into the room and leave me outside, I don’t know if they did not want me to see what was going on in the room.” Morris agreed that this statement was the truth and that all three of them had gone into the bedroom and had left him alone in the living room playing on his phone. Morris also agreed that the two Brissett brothers had left the Weston Road apartment together with him on this occasion and had driven to the Sherway Gardens building, with Morris sitting in the back seat of the car. All three of them went up to unit 904 together, where Bulldog was present. Morris felt that they were trying to keep something from him when the three of them went into the bedroom and he remained outside.

[85] I cautioned the accused, after this apparent breach of their bail terms, that bail would be revoked if there was any repetition of this contact outside of court.

(vii) The defence evidence relating to the accused Everald Brissett

[86] The accused Everald Brissett did not testify in his own defence. However, he called Ervin Malcolm who was arrested with him on January 24, 2014. Ervin Malcolm was born in Jamaica and came to Canada at age 12. He is 42 years old and has no criminal record. He is the cousin of Everald and Bernard Brissett. Everald Brissett is the older of the two Brissett brothers and Everald is six years older than Ervin Malcolm. Ervin Malcolm has worked at various jobs and has been employed as a house painter for the past five years.

[87] Ervin Malcolm was arrested and charged in the present case on January 24, 2014, but the charges were stayed by the Crown on June 13, 2014. Malcolm explained how he came to be with the accused Everald Brissett at the door to unit 904 in the Sherway Gardens building on the night in question.

[88] That evening, Ervin Malcolm and Everald Brissett were out having drinks at a bar known as “Triple Star” near Jane and Wilson. He described their relationship as close and they would socialize together. They had been at the bar for 1½ to 2 hours when Ervin Malcolm received a phone call. It was between 8:00 and 9:00 pm. The call was from a man whom Ervin Malcolm had played soccer with. He had only known this man for about a year and called him “Omar” or “Bulldog.” He did not know the man’s real name. Bulldog is a tall black man from Jamaica with a scar on his face. Bulldog said that a girl was having a birthday party at his building and he invited Ervin Malcolm to attend. Malcolm described himself as a “party animal” who will go to any party. Bulldog did not tell Ervin Malcolm the name of the girl who was having the birthday party and he did not give Ervin Malcolm the address of his building. Ervin Malcolm had never been to Bulldog’s apartment but he understood from conversations at their soccer games that Bulldog lived in a building near Sherway Gardens. Bulldog said in the phone call that his building was near Sherway Mall. When he got off the phone, Ervin Malcolm told Everald Brissett about the party and they decided to go. The two men left the bar in Ervin Malcolm’s car, which was a Mazda.

[89] Ervin Malcolm described his prior relationship with Bulldog as one based entirely on playing soccer together during the previous year at a “pick up” game. They had never socialized together. There was a group of men who played soccer regularly during the summer season. They had each other’s phone numbers and would call to arrange a game. The soccer season began in April or May and ended in September or October when it became cold. The games were mainly organized by a man named “Junior,” who knew both Ervin Malcolm and Bulldog. At the start of the 2013 soccer season, Ervin Malcolm met Bulldog. He had not seen him since the end of the 2013 season.

[90] Ervin Malcolm planned to drive towards Sherway Mall and to then call Bulldog and get directions to his building and to the party. All he knew was that the party was somewhere in Bulldog’s building. He was driving with Everald Brissett, near highways 401 and 427, when Bulldog called again. Bulldog said that he was out somewhere, that he was looking for Junior, that Junior was supposed to come and pick him up, that he had been trying to reach Junior on the phone, and that he thought Junior was asleep in Bulldog’s own apartment. Bulldog asked Ervin Malcolm to go to his apartment to check on Junior and see if Junior was sleeping. Ervin Malcolm asked Bulldog how he would get into the apartment and Bulldog told him to go and meet Bulldog’s girlfriend. Ervin Malcolm did not know Bulldog’s girlfriend but Bulldog told him to meet the girlfriend in the parking lot of a grocery store located in a shopping plaza near Highway 427 and Brown’s Line. Bulldog told Ervin Malcolm to just park his Mazda in the parking lot and the girlfriend would come and see him and give him the key to Bulldog’s apartment. Ervin Malcolm assumed that Bulldog would give his girlfriend a description of the Mazda, which Bulldog had seen Ervin Malcolm driving to and from the soccer games.

[91] It took Ervin Malcolm about ten minutes to drive down Highway 427 to the shopping plaza. It was dark and cold and there was a snowstorm. He and Everald Brissett sat in the Mazda in the grocery store parking lot. Ervin Malcolm had never been there before, although he had driven past it some years ago. They did not have to wait long before the girlfriend approached their parked car. She pulled up in a silver Honda and got out. She said, “I’m Crystal, Omar’s girlfriend, he said to give you this,” and she handed Ervin Malcolm a key ring. The key had purple plastic around it and there was a security fob and a set of nail clippers attached to the key ring. Crystal told him that the key was for the door to the unit and the fob was for the door to the building. Crystal also gave Ervin Malcolm the location of the building and the unit number. She told him that the building was “straight across from Sherway Mall” and that it was “unit 904.” Ervin Malcolm had never been there before. This is all that she told him.

[92] Ervin Malcolm and Everald Brissett then drove to Sherway Mall. It took about five to ten minutes. There are three condominium buildings across from Sherway Mall. Crystal told Ervin Malcolm to go to the “newest building” and to “turn left at the second stop sign.” There was no parking at the Sherway Gardens building so they parked at Sherway Mall and walked back to what looked like the newest building.

[93] Ervin Malcolm testified that the accused Everald Brissett just followed him into the building. Everald Brissett did not have the instructions as to where they were to go, and he did not say that he already knew the building from a previous visit or visits. Everald Brissett was just “coming along for the ride.” Ervin Malcolm remembered that Everald Brissett opened the front door and Ervin Malcolm followed him into the building. There was a security desk with a view of the front door but Ervin Malcolm believed that Everald Brissett just opened the front door. Crystal had told Ervin Malcolm that the security fob was for the interior door. She did not say that the front door required a fob and he denied trying to use the fob at the front door.

[94] Upon entering the front door, Ervin Malcolm turned to the left, as Crystal had told him to turn left once he was inside the building and to proceed to a second set of doors. There is a security fob reader at this second set of doors, where he was to use the fob and then proceed to the elevators. Ervin Malcolm recalled seeing the party room, as they walked towards the elevators, and hearing music coming from the room. It was on the right and he pointed to it as the place where he assumed the party was taking place. Ervin Malcolm also recalled a security guard with a clip board approaching them but could not recall what the security guard said. They did not go into the party room to see if Junior was there because Ervin Malcolm felt that they had to go up to unit 904 to see if Junior was sleeping in the unit. Ervin Malcolm agreed that Everald Brissett went ahead of him, after opening the front door, even though Everald Brissett did not know the building and did not have any instructions concerning where to go. Everald Brissett still said nothing about already knowing Bulldog’s unit.

[95] Ervin Malcolm testified that he had the key and the fob throughout. He used the fob at the set of doors that leads to the elevators. They took an elevator to the ninth floor. It was Ervin Malcolm who used the key in the door to unit 904. Everald Brissett was standing behind him. The door opened inwards and a man inside said “Police.” Ervin Malcolm took only one or two steps and then went to the ground. He was going to the unit to see if Junior was inside sleeping and he was not expecting to see these men. All of Junior’s friends are black. As he moved towards the elevator, the keys in his hand fell to the ground.

[96] The above account, according to Ervin Malcolm, was based entirely on memory. He had not made any notes of these events and he had not spoken to anyone about the matter, except his own lawyer. At the end of his cross-examination, and after providing the above account, the Sherway Gardens building surveillance video was played to Ervin Malcolm (Exhibit 12A, clips 3 and 4). He identified the accused Everald Brissett as the taller of the two men, wearing a red scarf, speaking on his cell phone, and reaching for the two front doors of the Sherway Gardens building, while Ervin Malcolm walked behind him. Ervin Malcolm agreed that the inner of the two front doors was locked and it had to be opened either by the security guard or by the fob reader located in the entrance vestibule. He agreed that it looked like Everald Brissett was buzzed in by the security guard, as he just walked straight up to the inner front door and opened it, while Ervin Malcolm was walking towards the fob reader. He agreed that Everald Brissett turned to the left, upon entering the inner front door, and headed down the corridor leading to the elevators, with Ervin Malcolm still following behind. Ervin Malcolm continued to deny that Everald Brissett knew where he was going. It was only Ervin Malcolm who had the instructions from Crystal as to where they were to go. At the interior doors leading to the elevators, the surveillance video shows that it is Ervin Malcolm who swiped the fob reader while Everald Brissett was still on his cell phone.

[97] Ervin Malcolm never questioned the need or the logic for meeting with Crystal and getting the keys and then going to check on Junior, as a favour to Bulldog. It never occurred to him to suggest on the phone that he could come and pick up Bulldog and take Bulldog to check on Junior, or that Crystal could check on Junior, or that Crystal could come and pick up Bulldog. He did not know where Bulldog was located when Bulldog phoned, as Bulldog had simply said that he was “out.” Ervin Malcolm testified that he is the kind of guy you can ask to do favours.

[98] After he was arrested, Ervin Malcolm wondered whether Bulldog had been “setting him up,” in the sense of sending him to unit 904 in order to “take the fall for him.” After he got bail, Ervin Malcolm tried to reach Junior and Bulldog but their phones were out of service and they did not return to the soccer games. He continued to see Everald Brissett at family events but they tried not to talk about the case.

C. ANALYSIS

(i) The law of possession

[99] The only live issue in this case is whether any of the accused was in possession of the large amount of drugs found in the cardboard box (in Morris’ case), in the Weston Road apartment (in Benjamin’s case), and in the Sherway Gardens condominium (in Brissett’s case). It is admitted that whoever possessed these drugs did so for the purpose of trafficking. There is also a subsidiary issue concerning whether the money that Everald Brissett was carrying was proceeds of crime.

[100] It is well established that the law of possession requires proof of knowledge of the substance in question, as the mens rea of the offence, and control of the substance in question as the actus reus. See: R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.); R. v. Terrence(1983), 4 C.C.C. (3d) 193 (S.C.C.). Section 4(3) of the Criminal Code provides for three distinct forms of this possession: first, having the substance “in his personal possession”; second, having the substance “in the actual possession or custody of another person” or “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession” (known as joint possession); and third, having the substance “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” (known as constructive possession).

[101] All three forms of possession require proof of both knowledge and control. The case law has made it clear that the element of control requires “some power or authority” over the unlawfully possessed object, and not “mere passive acquiescence” or “mere indifference.” The cases also stress that the element of control relates to the unlawfully possessed object itself (the drugs in this case), and not to the room or place where the object is found (although control of the room or place is a piece of relevant evidence). See: R. v. Thompson and Sharp, 2010 ONSC 2997 at paras. 30-48, where there is extensive analysis of the binding authorities on these points.

[102] The issue in this case is whether the Crown has proved the two elements of knowledge and control beyond reasonable doubt, as against any of the three accused and in relation to the three seizures. The evidence is entirely circumstantial.

(ii) The law relating to circumstantial evidence

[103] To satisfy the Crown’s burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference arising from the evidence. Therefore, in the context of the knowledge and control issues in the case at bar, the Crown cannot succeed unless the only reasonable inference is that a particular accused had knowledge and control in relation to a particular seizure. See: R. v. Cooper (1978), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.); R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 at paras. 28-30 (S.C.C.).

[104] The first step in a circumstantial case, is to determine what primary facts have been proved. The second step is to determine what reasonable and non-speculative inferences flow from the primary facts. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 at paras. 33-5 and 42 (Ont. C.A.); R. v. Alexander (2006), 70 W.C.B. (2d) 321 (Ont. S.C.J.).

[105] As in most circumstantial cases, some of the primary facts in this case do not support an inference of guilt or they are open to innocent explanations, when viewed in isolation. The proper way to assess the cogency of any suggested rational inference, or any suggested innocent explanation, is not by analyzing the primary facts piecemeal. As Taschereau J. put it, speaking for six members of the Court in R. v. Coté (1941), 71 C.C.C. 75 at 76 (S.C.C.):

It may be and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value, but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for conviction. [Emphasis added.]

Also see: R. v. Morin (1988), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 22 C.C.C. (3d) 576 n (S.C.C.); R. v. J.M.H., 2011 SCC 45, 2011 S.C.C. 45; R. v. Morin (1992), 76 C.C.C. (3d) 193 at 200 (S.C.C.); R. v. Lynch, Malone and King (1978), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).

[106] Finally, it must be remembered that a potential inference of guilt will only satisfy the Crown’s burden of proof if it is the only reasonable inference arising from the evidence. However, inferences consistent with innocence do not have to arise from proven facts and they do not have to be the only reasonable inferences. Inferences consistent with innocence can arise from a lack of evidence and they may simply be reasonable possibilities, provided they are based on logic, common sense, and experience and not on speculation. See: R. v. Villaroman, supra at paras. 35-43; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at 58 (Ont. C.A.); R. v. Figueroa, supra.

(iii) Application of the facts to the law: Gary Morris

[107] The case relating to the accused Morris is the easiest to resolve. That is because I believed the exculpatory account that he advanced, both in his out of court statements and in his testimony. Accordingly, I am left in the first of the three positions described in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at 409 (S.C.C.).

[108] Mr. Rusonik, counsel for Morris, did not suggest that there was any issue as to the element of control. Morris was clearly in control of the cardboard box that contained seven kilos of cocaine and he intended to deliver it to unit 904, on behalf of Bernard Brissett. If Morris was aware of the contents of the box, then the evidence of control is overwhelming. The only issue is whether Morris had knowledge of the illegal contents of the box. The Crown did not strenuously submit that this element of knowledge had been proved. At best, Mr. Gilman relied on the doctrine of wilful blindness, as the legal equivalent of knowledge, and he did not press this position forcefully.

[109] The doctrine of wilful blindness was recently described in the following terms, in R. v. Briscoe (2010) 2010 SCC 13, 253 C.C.C. (3d) 140 at paras. 21-4 (S.C.C.), where Charron J. spoke for a unanimous Court:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, 18 C.C.C. (3d) 223, 17 D.L.R. (4^th) 577 and R. v. Jorgensen, [1995] 4 S.C.R. 55, 102 C.C.C. (3d) 97, 129 D.L.R. (4^th) 510. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).)

Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”. [Emphasis of Charron J. in the original, both in italics and underlining.]

Also see: R. v. Duong (1998), 124 C.C.C. (3d) 392 (Ont. C.A.).

[110] I am satisfied that Morris was suspicious of something untoward about unit 904 at the Sherway Gardens building. He agreed that no one seemed to live there and he thought that Bulldog and the Brissett brothers may have been trying to keep something from him, when they retired into the bedroom and left him alone in the living room on one occasion. Bernard Brissett and Bulldog had repeated this odd behaviour on all three occasions when Morris was invited up to unit 904.

[111] However, this kind of generalized suspicion about the premises and its associated activities is a far cry from “deliberate ignorance” in relation to the contents of the box, which is what wilful blindness would require. When Bernard Brissett asked Morris to deliver the box in the taxi up to unit 904, the request was unusual and even suspicious. However, Bernard Brissett was the driver of the Hyundai and the police witnesses agreed that the circular driveway was very busy at this time in the early evening and that Brissett appeared to be looking for a parking spot. He was doing Morris a favour, by giving him a ride home to Brampton, and it is understandable that Morris would not question Bernard Brissett when asked in effect to return the favour. As the Crown conceded in argument, Bernard Brissett must have known that he had seven kilos of cocaine sitting in the trunk of a waiting taxi and that he needed to get it out of there quickly. He had been on his cell phone, as he and Morris left the Weston Road building. In these particular circumstances, it is not surprising that Bernard Brissett would suddenly or unexpectedly ask Morris to do him a favour.

[112] Morris testified that he was not suspicious of illegal activities, when Bernard Brissett asked him to deliver the box. As noted previously, I believed Morris’ account (as did a very experienced police officer, Det. Zeleny). Morris struck me as a very unsophisticated man. He spontaneously told his story to the police, on arrest. He then repeated his story in some detail in a properly cautioned and recorded KGB statement. He then repeated his story again in testimony here in court. That story held up reasonably well during a lengthy cross-examination. There were no major inconsistencies or improbabilities in his account, with one exception that I will address below. He was always careful not to say anything, if he was at all unsure on the point. His demeanour as a witness was thoughtful and respectful. He exhibited exactly the kind of innocent personality that could be exploited by someone using him as a “blind courier.” In short, his story about attending Friday “fish fries” as a grateful guest of new-found friends, and about being kept in the dark as to the activities going on in the bedrooms of these new friends’ premises, was not only plausible. It had the ring of truth.

[113] For all these reasons, Morris is not guilty of the offence charged in Count One, namely, possession of cocaine for the purpose of trafficking. The essential element of knowledge has not been proved.

(iv) Application of the facts to the law: Everald Brissett

[114] The more important primary facts alleged in relation to Everald Brissett, in my view, are the following:

• He was in possession of the key to unit 904 at the Sherway Gardens building and he was the person in the lead at the door trying to enter that unit, together with Ervin Malcolm, at 11:05 pm on January 24, 2014;

• His younger brother, Bernard Brissett, had arranged for the delivery of seven kilos of cocaine to unit 904 earlier that evening, at about 7:00 pm on January 24, 2014. The cocaine was simply to be left in a box inside the door to the premises;

• According to Gary Morris, Everald Brissett had been with his brother Bernard Brissett at the Weston Road apartment at about 6:45 pm on January 24, 2014, when Bernard Brissett left the apartment with Gary Morris in order to carry out this seven kilo delivery of cocaine to unit 904;

• The very substantial value of the seven kilo delivery (between $315,000 and $420,000) and the even greater value of the 15.6 kilos of cocaine stored in the bedroom closet of unit 904 (between $700,000 and $935,000). In other words, whoever was entrusted with access to unit 904 on the evening of January 24, 2014 was being entrusted with access to what was potentially over $1 million worth of cocaine, some of which was to have recently been left in an unsealed box inside the front door to the unit;

• The general character of the unit 904 premises, that is, no one appeared to live there and its real purpose was as a “stash house” where large amounts of cocaine were stored, packaged, cut, and re-distributed;

• Everald Brissett’s prior association with and apparent knowledge of the unit 904 premises. In this regard, the video surveillance in the building on the evening of January 24, 2014 shows him being buzzed in by the concierge or security guard at the front entrance and then immediately turning to his left and heading down the hallway that leads to the elevators that service the 205 Sherway Gardens condominium tower (as opposed to turning to the right and heading towards the 215 Sherway Gardens condominium tower or simply going to the concierge or security guard in order to ask for directions). Everald Brissett was undoubtedly in the lead, and he appeared confident and knowledgeable as to where he was going, while Ervin Malcolm was hesitant and was tagging along behind, following Everald Brissett’s lead;

• Gary Morris’ testimony, adopting his KGB statement to the police, to the effect that Everald Brissett had been in unit 904 on a prior occasion, around October 2013. Morris testified that he had attended at the premises with Everald and Bernard Brissett, when getting a ride home from one of the “fish fries” at the Weston Road apartment. The man known as Bulldog was already inside unit 904 when they arrived. The Brissett brothers and Bulldog left Morris sitting alone in the living room and went into the bedroom for a private meeting of some kind. Morris wondered whether they were trying to keep something from him;

• The manner and place where the cocaine was stored in unit 904, when the search warrant was executed on January 25, 2014. It was hidden inside three suitcases in the bedroom closet, generally in large one kilo packages. Numerous empty suitcases were stacked in the den area and on the balcony. In other words, it appeared that current supplies of cocaine were being kept in the bedroom in suitcases, while the empty suitcases were stored outside the bedroom;

• Everald Brissett’s brief flight from the police when he was surprised by them at the door to unit 904 on January 24, 2014;

• The seizure of $1,785 in Canadian cash from Everald Brissett upon his arrest on January 24, 2014;

• The strong connection between Bernard Brissett and Bulldog and the cocaine being stored and trafficked from unit 904, and Everald Brissett’s apparently trusted association with them and with the premises.

[115] Some of the above eleven circumstances are more probative than others. For example, Everald Brissett’s brief flight, when taken by surprise at the door to unit 904, and his possession of $1,785 in cash upon arrest, do not add a great deal to the other nine circumstances. Furthermore, some of the more important of the above eleven circumstances are strenuously disputed by the defence. In particular, the first circumstance (Everald Brissett’s alleged possession of the key and lead position at the door to unit 904) is challenged, both through cross-examination of the police officers and by calling Ervin Malcolm as a defence witness. In addition, the third and seventh circumstances (Everald Brissett’s presence at the Weston Road apartment on January 24, 2014, prior to Bernard Brissett’s departure to deliver the seven kilos of cocaine, and Everald Brissett’s earlier private meeting with Bulldog and Bernard Brissett in the bedroom at unit 904) both depend on Gary Morris’ credibility and reliability, which is challenged.

[116] In relation to these preliminary fact finding issues, I begin by addressing Ervin Malcolm’s testimony. I have no difficulty in completely rejecting his account. As a result, I am left in the third and last of the three positions described in R. v. W.(D.), supra at 409.

[117] My reasons for completely rejecting Ervin Malcolm’s exculpatory account are both its internal improbability and the external contradiction of that account. It is hard to imagine a more complicated and improbable story. At every step in Malcolm’s narrative, new complexities and new improbabilities arose that caused me to question whether he was telling the truth. In particular, the suggestion that someone (Bulldog) he did not know as a personal friend and had not seen for a number of months, could or would get him to drive around in a snowstorm on a cold winter night, meeting with someone he had never met before (Bulldog’s girlfriend) in a strange parking lot, getting a set of keys from her without getting an address to a building and unit where he had never been before, and then going to check on whether a third person (Junior) was asleep inside the unit, is simply preposterous. Furthermore, Ervin Malcolm’s account, to the effect that only he had the directions and the key to unit 904, that Everald Brissett did not know where they were going and was just “coming along for the ride,” and that Everald Brissett stood behind Ervin Malcolm while Malcolm used the key to open the door to unit 904, is all contradicted by the video surveillance evidence and by the three police officers who came to the door. They all testified that Everald Brissett was standing in front of Ervin Malcolm at the door and the video surveillance evidence clearly shows that Everald Brissett was taking the lead and that he confidently knew where he was going, as he entered the building and headed towards the elevators. Indeed, the defence conceded that Ervin Malcolm was wrong on some of these points. The fact that Ervin Malcolm was carrying two cell phones and $1,245 cash, and the fact that he was trusted to accompany Everald Brissett to a “stash house,” at a time shortly after a seven kilo delivery of cocaine was to have been left inside the door, adds to my suspicion about Malcolm’s role in this matter and about his credibility.

[118] The defence relied on the fact that Ervin Malcolm can be seen in the video surveillance, swiping the fob reader at the interior doors leading to the elevators. This struck me as a minor point. Everald Brissett was on his cell phone at the time and may have been preoccupied. In any event, what matters more is that Everald Brissett appeared to be in charge. He took the lead, when entering the building and heading to the elevators and when entering unit 904 at the door.

[119] For all these reasons, I am satisfied that Ervin Malcolm was not a truthful witness. I completely reject his account.

[120] Turning to the issue of whether Everald Brissett personally had the key, at the time of the attempted entry into unit 904, I am satisfied that he did. As set out above, all three police witnesses were consistent in testifying that Everald Brissett was standing in front of Ervin Malcolm when the door to unit 904 was opened. Furthermore, the video surveillance evidence clearly shows that Everald Brissett was taking the lead as the two men entered the building and headed to the left towards the elevators that service the 205 Sherway Gardens condominium tower. The body language of the two men strongly suggests that Everald Brissett was in charge. As I understood the submissions of Everald Brissett’s counsel, Mr. Morris, especially in reply, he conceded that Everald Brissett had previously attended at unit 904. Indeed, this was the tenor of counsel’s cross-examination of Gary Morris, as he did not seriously challenge Morris’ assertion that Everald Brissett had been with Morris in unit 904 on a prior occasion.

[121] In all these circumstances, it is more probable that Everald Brissett would be the one who had the key and took the lead as they tried to open the door and enter unit 904. Furthermore, Sgt. Teixeira testified that he saw Everald Brissett drop the keys as he fled down the hallway and was taken to the ground by Sgt. Miranda. It makes sense that the other officers would not have seen this small but important detail. Indeed, it would have been suspicious if they had all neatly supported Sgt. Teixeira’s account on this point. Sgt. Miranda was in front of Sgt. Teixeira and was the one who tackled Everald Brissett and took him to the ground in the hallway to the right of the door. Det. Zeleny was also in front and he took Ervin Malcolm to the ground at the elevators. Det. Backus was never at the door and he was too far behind the others to see anything that happened in the hallway. In other words, Sgt. Teixeira was the only officer who had a perfect vantage point to see who had dropped the keys in the hallway, as he was just behind the two lead officers and yet he was not too far behind. Finally, he was unlikely to be mistaken as to which of the two persons had dropped the keys because they went in different directions. In this regard, Sgt. Teixeira was following Everald Brissett and Sgt. Miranda. He was not following Malcolm and Det. Zeleny.

[122] All of the officers struck me as credible and reliable witnesses. They conceded certain points that favoured the defence and they all provided their own independent perspective of the relevant events. There was no suggestion of a single monolithic story on which they had collaborated. The defence challenged Sgt. Teixeira in cross-examination but, in my view, the challenge did not succeed. Finally, Sgt. Miranda corroborated Sgt. Teixeira to some extent in that he agreed that Sgt. Teixeira handed him the keys seized in the hallway and Sgt. Miranda then photographed these keys together with Everald Brissett’s other personal possessions seized by Sgt. Miranda incident to his arrest of Everald Brissett (in Exhibit 20, TAB 2, photograph 13).

[123] For all these reasons, I am satisfied that Everald Brissett had the keys to unit 904 when he and Ervin Malcolm attempted to open the door.

[124] The final preliminary fact finding issue concerns Gary Morris’ credibility and reliability in relation to his account about Everald Brissett and Bernard Brissett having both been present at the Weston Road apartment on the evening of January 24, 2014, and in relation to his account about Everald Brissett and Bernard Brissett meeting in private with Bulldog in the bedroom to unit 904 on a prior occasion. I have already concluded that Gary Morris was a credible witness, in terms of his account about his own culpability. Of course, it is possible that he could lack credibility and reliability in relation to the culpability of others. In this regard, it is significant that Morris’ KGB statement to the police on the night in question included reference to both of these incidents involving Everald Brissett. He told the police that Everald Brissett was present at the Weston Road apartment on January 24, 2014 and that Everald Brissett had a private meeting in the bedroom of unit 904 with Bulldog and Bernard Brissett on a prior occasion. In other words, Morris’ account in his testimony at trial, in relation to both of these incidents, is not a recent invention.

[125] There is no doubt that Morris struggled on occasion, when trying to remember how many times he had been to “fish fries” at the West Road apartment, how many times he had been to unit 904 at the Sherway Gardens building, and exactly who was present on each occasion. It is not surprising that he would not have perfect recall of these kinds of historical details. However, the events of January 24, 2014 at about 6:45 pm were fresh in his mind, when he spoke to the police at 12:42 am on January 25, 2014. He was clear in recalling that both Everald and Bernard Brissett had been at the Weston Road apartment some six hours earlier. As I stated previously, Morris was careful not to assert facts of which he was unsure.

[126] In relation to the alleged private meeting between Bulldog and the two Brissett brothers at unit 904 in October 2013, this was a relatively significant event that Morris was likely to recall, in that it involved conduct that, at a minimum, was odd or anti-social. It was not a mere historical detail on which he could easily be mistaken. Furthermore, as I understand the position of counsel for Everald Brissett, and as noted above, it is conceded that Everald Brissett was present in unit 904 on this occasion and so Morris’ reliability is not in dispute when he asserts that he, Bernard and Everald Brissett all went up to unit 904 together. The only dispute is as to whether Everald Brissett joined Bulldog and Bernard Brissett at the private meeting in the bedroom. Morris was undoubtedly inconsistent on this point. In cross-examination by counsel for the accused Brissett, he testified that Everald Brissett remained out in the living room with him and did not go into the bedroom. In further cross-examination by the Crown, and after viewing and listening to his KGB statement to the police, Morris testified that the two Brissett brothers and Bulldog all went into the bedroom together and left him alone in the living room.

[127] This is a potentially significant inconsistency. However, the change or inconsistency in Morris’ account is the one that arose for the first time in cross-examination by counsel for Everald Brissett. As explained above, that change emerged at a time when Morris was already under cross-examination and shortly after Everald Brissett had been involved in giving Morris a ride home after court on the previous evening. This was a serious breach of bail, at a critical juncture in the trial, and it renders the ensuing and recent change in Morris’ account unreliable. I am satisfied that the reliable version is the account that he initially gave to the police on January 25, 2014 and that he once again adopted as his ultimate position, when testifying here in court at some length. See, by analogy: R. v. Maxwell (1979), 47 C.C.C. (2d) 65 (S.C.C.); R. v. Dobberthien (1974), 18 C.C.C. (2d) 449 (S.C.C.).

[128] For all the above reasons, I am satisfied that Gary Morris’ evidence is reliable and credible in relation to the third and seventh circumstances set out above at the beginning of this section of my Reasons.

[129] It can be seen that I am satisfied that all eleven primary facts have been proved. The issue that remains is whether Everald Brissett’s guilt, that is, his knowledge and control of the cocaine found in unit 904, is the only reasonable inference that flows from these circumstances or whether there are reasonably possible inferences consistent with innocence. The only innocent inferences suggested by counsel in argument were the following: that Bulldog sent Ervin Malcolm and Everald Brissett to unit 904, after learning of the police presence; alternatively, that Malcolm and Brissett attended at unit 904 as purchasers of cocaine. The former theory, that Bulldog sent two friends or associates on a dangerous reconnaissance mission, or that it was a “set up,” is speculative and it depends on Malcolm for its initial premise (concerning a phone call from Bulldog). I have rejected Malcolm’s evidence so this first theory is simply speculative. The second theory, that Malcolm and Brissett were purchasers, is contradicted by the fact that they had the key to the “stash house” and there was no vendor present.

[130] In my view, the totality of the eleven circumstances, when viewed together, overwhelmingly infers that Everald Brissett was in constructive and joint possession of the cocaine. The timing of his entry into the premises at 11:05 pm, just four hours after seven kilos of cocaine were to have been delivered to the door of that unit by his brother, the extraordinary value of all the cocaine inside the unit, the general character of the premises as a “stash house,” his prior association with the premises and with Bulldog and his brother, including at a private meeting in the bedroom of the premises, and the obvious trust in allowing him unsupervised access to the premises, all combine to exclude any reasonably possible inferences consistent with innocence.

[131] I am satisfied beyond reasonable doubt that Everald Brissett was in constructive and joint possession of the 15.6 kilos of cocaine found in unit 904 on January 25, 2014. Accordingly, he is guilty of the offence charged in Count Two, namely, possession of cocaine for the purpose of trafficking. The $1,785 in Canadian cash seized from Everald Brissett on arrest is not such a large or unusual amount of cash, and it is not so closely connected to some drug trafficking activity, that I can be satisfied beyond reasonable doubt that it is proceeds of crime. Accordingly, Everald Brissett is not guilty of the offence charged in Count Three.

(v) Application of the facts to the law: Courtney Benjamin

[132] The more important primary facts alleged in relation to Courtney Benjamin, in my view, are the following:

• Benjamin clearly resided in apartment 1004 at 3101 Weston Road, together with his brother Howard Benjamin. There is no evidence that the drugs found in the two bedroom apartment were connected to the brother Howard Benjamin. He was not present in the apartment at any relevant time and no drugs were found in his bedroom;

• The great majority of the drugs found in the apartment were located in the bedroom where the accused, Courtney Benjamin, admittedly resided. In particular, 934 grams of cocaine, that is, just under a kilo, was found in the second drawer of his bedroom dresser. Another approximately 180 grams of cocaine, over 100 grams of marijuana, and over 300 grams of phenacetin were found in his bedroom closet underneath some clothes;

• Additional amounts of cocaine and marijuana were found in a more public area of the apartment. On the back of a living room couch, there were two plastic grocery bags containing 83 grams of marijuana and over 250 grams of cocaine, that is, over a quarter kilo of cocaine;

• The third location where drugs were found was in a distinctive brown leather jacket with a shearling collar that was hanging in the hall closet. It had three small knotted baggies of cocaine, totaling 84 grams, in a pocket;

• The considerable amount of cocaine found in the apartment, totaling about 1.4 kilos, was worth between $67,000 and $93,000. The marijuana was worth between $1,400 and $1,750;

• In another relatively more public area of the apartment, namely, the kitchen, there were four separate digital scales, including a one kilo scale. A fifth digital scale was found in Benjamin’s bedroom closet, under some clothes;

• Benjamin had been away from Toronto visiting Jamaica for a month. He had returned to his Toronto apartment on January 23, 2014 by about 8:30 pm that evening. He was admittedly in and around his apartment during the next twenty-four hours, prior to the execution of the search warrant at about 3:00 am on January 25, 2014. No one was present in the apartment when the search warrant was executed in the middle of the night;

• There is evidence that a person named “Tony” had been staying in the apartment as a guest, in Benjamin’s bedroom, during the month that Benjamin was away in Jamaica;

• At about 4:10 pm on January 24, 2014, that is, almost twenty hours after his return from Jamaica, Benjamin was engaged in certain suspicious activities at his apartment building. He was observed, both on the building’s video surveillance and by a police surveillance officer, doing the following: emerging from his tenth floor apartment, taking the elevator to the lobby, walking directly out the front doors and to a parked taxi, opening the front passenger door, removing an Aldo shopping bag, closing the taxi door, and returning to the building lobby while the taxi immediately pulled away. There was no communication between Benjamin and the taxi driver, either in the form of verbal inquiries or in the form of payment. The entire incident happened very quickly and without any hesitation by Benjamin. Upon returning to the lobby, Benjamin went into the mail room and, upon exiting, appeared to put his mail in the Aldo shopping bag. He then took the elevator to the ninth floor of the building, took the stairwell up to the tenth floor, and returned to his apartment. The Aldo shopping bag was found empty in the living room when the police later executed the search warrant;

• At about 5:00 pm, two males who had been observed in the building parking lot seated in separate cars, entered the apartment building. They both went up to the tenth floor and entered Benjamin’s apartment. A half an hour earlier, at about 4:30 pm, these two men had been seen in the parking lot in their parked cars talking to a man who had come out of Benjamin’s apartment and who had gone down to the parking lot to have a brief one or two minute conversation with the two men, before returning to Benjamin’s apartment at 4:32 pm. This man wore a black leather jacket. There is some evidence that he is “Tony,” the guest who had been staying in Benjamin’s apartment during the month that Benjamin was away in Jamaica;

• One of the two men from the two parked cars did not remain in Benjamin’s apartment for long. He left after about ten minutes, at 5:10 pm, carrying a white envelope that was about two inches thick and that may have contained cash. He was observed by surveillance officers and he can be seen on the building surveillance video with a thick apparently unsealed envelope in his hand. This male drove away from the parking lot in his car. The other male, who had also entered the building at about 5:00 pm, remained in Benjamin’s apartment. This other male was Bernard Brissett;

• Bernard Brissett was carrying an Adidas shoulder bag when he entered Benjamin’s apartment at about 5:00 pm. The accused Morris testified that he had also arrived at Benjamin’s tenth floor apartment for the usual Friday “fish fry” at about 5:00 pm. He sat down in the living room and drank a beer. There were only three or four people present in the apartment. He saw Bernard Brissett come out of the bedroom. The bedroom door had previously been closed, indicating to Morris that those inside the bedroom wanted privacy. After Bernard Brissett had emerged from the bedroom, the accused Benjamin also came out of the bedroom. At some point, Everald Brissett also arrived at the apartment;

• At 6:42 pm, after Bernard Brissett had been in Benjamin’s apartment for over an hour and a half, Bernard Brissett and Gary Morris exited from the apartment and walked out of the building and entered Bernard Brissett’s parked car. Bernard Brissett was still carrying the Adidas shoulder bag that he had been carrying upon entry into the building at about 5:00 pm. They drove directly to the Sherway Gardens building, where both Bernard Brissett and Gary Morris were arrested. Brissett was found in possession of $4,000 in Canadian cash in the Adidas shoulder bag and $5,000 in Canadian cash on his person. This total of $9,000, found in two locations, was similarly arranged in $1,000 bundles wrapped in elastics;

• The cocaine seized at Benjamin’s apartment was cut with phenacetin, and phenacetin was found in the bedroom closet. The search of the Sherway Gardens condominium unit, associated with Bernard Brissett, Everald Brissett, and Bulldog, revealed substantial amounts of both cocaine and phenacetin.

[133] Almost all of the above thirteen circumstances are not in dispute. Indeed, most of them emerge from Agreed Statements of Fact that were sensibly arrived at by the parties. The main issue in relation to the accused Benjamin is what reasonable inferences can be drawn from the primary facts, especially when this body of circumstantial evidence is assessed in the context of Benjamin’s own testimony in which he denied knowledge and control of the drugs.

[134] One of the above thirteen circumstances is disputed and that is the eleventh one, concerning Gary Morris’ observations inside Benjamin’s apartment between approximately 5:00 pm and 6:42 pm on January 24, 2014. Morris testified that Benjamin was in the apartment at certain points and, most importantly, placed him in the bedroom with Bernard Brissett behind a closed door at a time when Brissett was likely in possession of $9,000 in proceeds of crime. Ms. Pennypacker, counsel for Benjamin, challenged the reliability and credibility of this part of Morris’ account.

[135] Once again, I have already explained my favourable assessment of Morris’ overall credibility but have acknowledged the possibility that he may be reliable and credible on some points but not on others. In relation to this particular incident, like Morris’ description of a similar incident at unit 904 relating to Everald Brissett, it was not a mundane historical detail on which Morris may simply have been mistaken. It was a somewhat unusual event that indicated to Morris that the person or persons in the bedroom were seeking privacy. Furthermore, it was a recent event that would have been fresh in his mind when he spoke to the police about six or seven hours later at 12:42 am on January 25, 2014.

[136] In his KGB statement to the police, Morris stated that he arrived at Benjamin’s apartment that afternoon, he sat down in the living room, and Bernard Brissett came out of a room where Morris had not been able to see Bernard Brissett. Morris told the police that Everald Brissett was also present in the apartment when he first arrived. Unfortunately, Det. Zeleny never followed up by asking whether anyone else came out of the bedroom, at some time after Bernard Brissett had emerged. When later asked who else was at Benjamin’s apartment that afternoon, Morris stated that “Pretty” was present. This is Courtney Benjamin’s “pet name.” Det. Zeleny never asked Morris what either Benjamin or Everald Brissett were doing in the apartment that afternoon and evening and whether they had been in the bedroom. Ms. Pennypacker submitted that Gary Morris was inconsistent on this issue concerning whether Benjamin was in the bedroom with Bernard Brissett with the door closed. In my view, this is not a significant inconsistency. It is an omission, or a failure to address a topic on which Det. Zeleny did not question him. Morris’ account of the incident has been generally consistent, although his initial account in the KGB statement lacked some of the detail that has now been added, which is not uncommon. In this regard, it is unlikely that Bernard Brissett would have been in Benjamin’s bedroom alone, with the door closed. It is much more likely that Brissett was with someone in the bedroom. It is also unlikely that Morris would have been mistaken in asserting that the other person in the bedroom was Benjamin, when it was actually “Tony,” as there is no evidence that Morris even knew “Tony” or saw anyone resembling “Tony” in the apartment that afternoon and evening. See: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 at 354-5 (Ont. C.A.).

[137] Given the above circumstances, especially the relative importance of this issue, the fact that the event would have been somewhat unusual to Morris, the fact that he appears to have noticed it as relating to a need for privacy, the care that Morris took in only asserting facts that he was sure of, and my overall favourable assessment of Morris’ credibility and reliability, I am satisfied that his evidence is credible and reliable concerning the fact that Bernard Brissett and Benjamin were both in Benjamin’s bedroom with the door closed in the late afternoon of January 24, 2014.

[138] The one other preliminary factual issue is the credibility of the accused Benjamin’s account, denying knowledge and control in relation to the seized drugs. If Benjamin is believed, or if his account simply leaves me unsure and in a state of reasonable doubt, then I must acquit. However, his account is not to be assessed in isolation from the other evidence. It must be considered in the context of the body of circumstantial evidence on which the Crown relies. See: R. v. Edwards (2012), 2012 ONSC 3373, 93 C.R. (6^th) 387 at paras. 24-5 (Ont. S.C.J.), citing R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.) and R. v. Campbell (2003), 57 W.C.B. (2d) 363 (Ont. C.A.).

[139] It is settled law that an accused’s exculpatory account can be completely rejected because of internal flaws in that account but also because of the compelling nature of the Crown’s contrary evidence. In other words, assessing the cogency of a circumstantial inference of guilt that may arise from the thirteen primary facts in this case is integral to any assessment of the credibility of Benjamin’s contrary testimony denying knowledge and control of the drugs. These are not two separate analytical exercises. See: R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.); R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Rojas (2008), 2008 SCC 56, 236 C.C.C. (3d) 153 at para. 25 (S.C.C.).

[140] In my view, there are significant internal weaknesses in critical parts of Benjamin’s exculpatory account. There were three inherent improbabilities at the core of his story that particularly troubled me. First, his assertion that “Tony” asked him to retrieve an unknown delivery from an unknown person, that was about to arrive in a taxi, struck me as improbable. According to Benjamin, the communication from “Tony” was simply to ask him to “grab something from downstairs” because “somebody is dropping off something” in a taxi. This is not the way two friends would communicate in these circumstances, especially if the delivery was innocent. Furthermore, Benjamin’s body language and conduct, as depicted in the video surveillance, are not of a man who has suddenly or unexpectedly been asked to do an unknown favour for a friend. The lack of communication with the taxi driver, as to whether this was Tony’s delivery and whether it had been paid for, the speed and certitude with which Benjamin went to the taxi and retrieved the bag after opening the front passenger door, and the fact that he put his own mail inside the shopping bag and then left it on the living room floor, with his own mail still inside, all strongly suggest that it was Benjamin’s own delivery and that he had arranged it himself. I found Benjamin’s account of this important incident to lack credibility.

[141] Second, Benjamin’s account acknowledges that he returned to his Toronto apartment from Jamaica at about 8:30 pm on January 23, 2014, that he put his luggage in his own bedroom, and that he told “Tony” to move into the other bedroom. Throughout the day on January 24, 2014, Benjamin went into his bedroom to retrieve various items from his luggage, such as gifts for his cousin Claudette and for his daughter. Presumably, he would also have showered and/or changed his clothes and used his bedroom for these purposes at some point during the approximately twenty-four hour period that he was back home in his apartment and was going out on two separate dates. Furthermore, “Tony” knew that Benjamin was returning home on January 23, 2014 and that he (“Tony”) would have to move out of Benjamin’s bedroom, and this was reinforced once Benjamin arrived home. In all these circumstances, it is inherently improbable to suggest that “Tony” would have left almost $100,000 worth of drugs in Benjamin’s bedroom, without Benjamin’s knowledge or permission. As the Court of Appeal put it in R. v. Bryan, 2013 ONCA 97 at para. 11:

…the trial judge observed that the quantity and value of the seized drugs made it inconceivable that the drugs would be casually entrusted, by an admitted drug dealer, to someone who did not know what was in the vehicle. We agree.

Also see: R. v. Bonilla-Perez, 2014 ONSC 2031 at para. 51, aff’d 2016 ONCA 535 at paras. 16-17.

[142] Third, the suggestion that Benjamin was completely unaware of a number of incriminating items found in relatively public areas of the apartment also lacks credibility. There were two bags of drugs in closed plastic shopping bags on the back of a living room couch, there were four separate digital scales in the kitchen (including a one kilo scale), and there was a distinctive coat hanging in the hall closet with drugs in its pocket. Benjamin denied any knowledge of all of these items, except for one set of digital scales in the kitchen. This is simply not credible. In particular, his denial of knowledge as to who had left the distinctive coat hanging in his hall closet struck me as a lie. As a matter of common sense, we generally know who has left a distinctive coat hanging in our hall closet. It is also clear that “Tony” was not wearing this coat on the afternoon of January 24, 2014, assuming that “Tony” is the man in the black leather jacket who exited the building and returned to Benjamin’s apartment at 4:30 pm on January 24, 2014.

[143] In addition to the above three fundamental problems with the core of Benjamin’s story, the thirteen circumstances set out above provide compelling evidence of his guilt which contradicts his denial. The overwhelming prevalence of the drugs concentrated in Benjamin’s own bedroom, the acknowledgement by counsel that Benjamin had been home from Jamaica for long enough to have taken control of these drugs, the presence of drugs and drug-related items in other more public parts of the apartment, the suspicious delivery of the Aldo bag in a taxi and the circuitous route taken by Benjamin on the way back to his apartment, the private meeting between Benjamin and Bernard Brissett in the bedroom at a time when Brissett likely had what I infer were substantial proceeds of drug trafficking, and the similarities between the Brissett brothers’ “stash” of cocaine and phenacetin in unit 904 of the Sherway Gardens building and the “stash” of cocaine and phenacetin in Benjamin’s bedroom, all combine to overwhelmingly infer that Benjamin had knowledge and control of the drugs in his apartment, either as a principal or as a party.

[144] I am satisfied that certain parts of Benjamin’s story may well be true, such as his trip to Jamaica and his dates with his girlfriend on the first nights after returning to Toronto. However, the core of his story, denying knowledge and control of the drugs in his apartment, is not true and I completely reject it for the reasons set out above. I am also satisfied that the only reasonable inference from the primary facts is that Benjamin had knowledge and control of the drugs in his apartment. For all these reasons, I am satisfied beyond reasonable doubt that Courtney Benjamin is guilty on Counts 4 and 5 of possession of cocaine and marijuana for the purpose of trafficking.

D. CONCLUSION

[145] For the reasons set out above, the verdicts in this case are as follows:

• Gary Morris is not guilty on Count One;

• Everald Brissett is guilty on Count Two;

• Everald Brissett is not guilty on Count Three;

• Courtney Benjamin is guilty on Count Four;

• Courtney Benjamin is guilty on Count Five.

[146] I would like to thank all counsel for their responsible conduct of this trial and for their forceful and effective advocacy.

M.A. Code J.

Released: February 3, 2017

CITATION: R. v. Brissett, 2017 ONSC 835

COURT FILE NO.: CR-17-90000041-0000

DATE: 20170203

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GARY MORRIS, EVERALD BRISSETT and COURTNEY BENJAMIN

REASONS FOR JUDGMENT

M.A. Code J.

Released: February 3, 2017

R. v. Morris, 2017 ONSC 835

Case Summary

A. OVERVIEW

B. FACTS

(i) The police investigation

(ii) The Weston Road apartment and the accused Benjamin

(iii) The cardboard box and the accused Morris

(iv) The Sherway Gardens condominium unit and the accused Everald Brissett

(v) The defence evidence relating to the accused Courtney Benjamin

(vi) The defence evidence relating to the accused Gary Morris

(vii) The defence evidence relating to the accused Everald Brissett

C. ANALYSIS

(i) The law of possession

(ii) The law relating to circumstantial evidence

(iii) Application of the facts to the law: Gary Morris

(iv) Application of the facts to the law: Everald Brissett

(v) Application of the facts to the law: Courtney Benjamin

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1