COURT FILE NO.: CR-17-41311 DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – OMERJAH BURKE, Defendant

Counsel: Emily Marrocco, for the Crown Byron Alvares, for the Defendant, Omerjah Burke

HEARD: March 28, 29, April 3-6, 9, 11, 2018

SPIES J. (ORALLY)

Reasons for Judgment

Overview

[1] Omerjah Burke is charged with several firearms offences in connection with his alleged possession of a prohibited firearm. He is also charged with possession of oxycodone and cocaine for the purpose of trafficking and possession of proceeds of crime not exceeding $5,000. These charges arose out of the execution of a search warrant on April 6, 2016, when police seized various items from a locked bedroom (bedroom #1) in Unit #210; a three-bedroom apartment in 100 Yorkgate, in the City of Toronto (apartment).

[2] At that time the police seized: a) a loaded Victor model revolver, with a defaced serial number; b) two digital scales; c) two quantities of cocaine weighing 7.98 and 6.51 grams respectively d) 32 oxycodone pills; e) $3,150 Canadian dollars; f) a single round of 22 calibre ammunition; and g) Ziploc baggies, baking soda and a Pyrex measuring cup with white residue (collectively the “contraband”). Police also obtained a lease document which confirmed that the apartment was leased to Omerjah Burke and Ansiah Khan for one year, commencing September 1, 2015 and ending August 31, 2016. Items seized on the same date from another Yorkgate address resulted in various firearms charges against Adrian Lee, who was a co-defendant at the time this trial commenced.

[3] At the outset of the trial, I heard Garofoli applications brought by both Mr. Burke and Mr. Lee alleging a breach of their s. 8 Canadian Charter of Rights and Freedoms; (Charter”) rights and for an order that all evidence seized as a result of the searches pursuant to the search warrants be excluded pursuant to s. 24(2) of the Charter. The parties agreed that Mr. Lee would be bound by my decision even though I might not be his trial judge. His trial was scheduled to be heard later this year. Mr. Burke’s trial proceeded before me, without a jury, after I dismissed the Garofoli applications on March 28, 2018; R. v. Lee, 2018 ONSC 3393.

The Issues

[4] The Crown called several officers involved in the search of the apartment, the taking of a statement from Mr. Burke and Det. Margetson, a drug expert witness. Mr. Burke testified in his own defence and also called his mother, Cheslin Thompson, his sister Tinnelle McCormack and his former girlfriend Kaylee-Ann Edwards as witnesses. In reply, the Crown called Sargent Leon Watson, from the Toronto South Detention Centre.

[5] There was no dispute about what the police alleged was seized from the apartment although the location of where certain items were located was disputed. The central issue is that although Mr. Burke admitted that he was on the lease for the apartment, it is his position that he had sub-let bedroom #1 to a friend named Kevin and that he had no knowledge of any of the contraband that was seized and that these items did not belong to him. His mother and sister who were also living in the apartment at the time of the search and Ms. Edwards corroborated his evidence.

[6] The other issue was whether or not the cocaine and the oxycodone pills that was seized from the apartment was in Mr. Burke’s possession for the purpose of trafficking and whether or not the $3,150 in cash is proceeds of crime.

The Evidence and Preliminary Findings of Fact

The Search of the Apartment

[7] The police executed the search warrant of the apartment at approximately 10:04 p.m. on the night of April 5, 2016. Mr. Burke was not present at that time but he was arrested in the apartment on April 30, 2016 at about 6:16 p.m.

[8] DC Gillespie was the central note taker during the execution of the search warrant, which meant that he was the only one making notes during the search. He recorded that the Emergency Task Force (“ETF”) entered the apartment at 10:04 p.m. and turned over the apartment to the investigators at 10:30 p.m. He testified that DC Taylor was detailed to do most of the searching. There were a total of nine people in the apartment, including three children; referred to by police as “found ins”. According to DC Gillespie, the other officers who were present were dealing with the found ins, who were very upset. I did not hear from those officers. According to DC Gillespie, DC Furanna was also present but he couldn’t do anything as he was the affiant of the Information to Obtain the search warrants.

[9] PC Potts of the ETF testified that he was the first person to enter the apartment and that once the ETF made entry and started to clear the apartment, he saw that the door to the last bedroom down the hallway on the left, bedroom #1, was locked. He could not remember the locking mechanism on this bedroom door, or if the handle turned or not, but he said he could not get it open. He called PC Ladurantaye to come and breach the door.

[10] I find based on this evidence and the photographs of the door entered into evidence that the door to bedroom #1 had a door knob that allowed it to be locked with a key that would be inserted into the doorknob. DC Taylor testified there was no key in the lock that he saw. Mr. Burke testified that he did not have a lock on this door when bedroom #1 was his room and that he`t have a problem with Kevin putting a lock on the door of bedroom #1 as Kevin just changed the doorknob.

[11] I accept the evidence of the officers and find that the door to bedroom #1 was locked and had to be breached. After PC Ladurantaye breached the door PC Potts used a mirror on a pole to view the inside of the room. He testified he could see a safe on the top shelf of the closet in plain view. PC Ryan also testified to seeing a small safe on a shelf in the closet. He and PC Potts then cleared bedroom #1. There was no one in the room at the time.

[12] DC Taylor was the officer who searched bedroom # 1. Any time DC Taylor needed help, DC Gillespie assisted him. DC Gillespie gave as examples, when he testified, that he assisted DC Taylor in raising the bed to look underneath and obtained a crowbar so that DC Taylor could pop the lid off the safe found in bedroom #1. I accept that the safe was also locked. According to DC Gillespie, he was inside bedroom # 1 briefly and he did not spend much time noting anything in bedroom #1. He admitted that there was nothing really of evidentiary value that was obvious to him in that room.

[13] DC Gillespie was not present when DC Taylor found any of the contraband in bedroom #1. He testified that DC Taylor had his own way of searching and if he found something, DC Gillespie would be called into the room to make notes to detail it. For example, when DC Taylor called him into bedroom #1 and told him that he found a firearm, DC Gillespie then wrote down the name and what kind it was in his notes.

[14] When DC Gillespie first saw the safe, it was on the bed in bedroom # 1. After DC Taylor opened it, DC Gillespie went back to taking statements from the found ins. DC Gillespie testified that he did not know or see what was inside the safe except to see that there were some items in the safe, maybe papers. He did not make any note of the contents. He explained that he did not have time to look because he was in the middle of taking statements. DC Gillespie testified that although he made a note of everything found in the apartment, he did not know whether items were found in the safe or elsewhere. The only item that DC Gillespie could give a location for as to where it was found, was the firearm as he noted that it was located in the closet.

[15] DC Gillespie completed an exhibit chart after the search of the apartment was completed. He was cross-examined about the order in which items are listed on the exhibit chart in an attempt to determine the order in which the items were found, but I find that the notes that he made, which are in a note section at the back of the exhibit chart, are most reliable in terms of the order in which items were found as those notes were made while the search was ongoing. In DC Gillespie’s notes, the order in which he listed items is: firearm, cocaine, cash, two scales, oxy, 22 caliber round. DC Gillespie was never notified of any documents being found by DC Taylor. In cross-examination DC Gillespie admitted that his information is largely dependent on DC Taylor.

[16] DC Taylor testified that he was involved in the search of the apartment and was also tasked to take photographs. He took search warrant entry photographs which he testified show how the apartment looked before it was searched. The entry photograph of the doorknob to bedroom # 1 shows a key lock in the knob without any key being visible. DC Taylor testified that he never found a key to that door or any other door and he had no recollection of any particular items being found on the nine people who were searched. No one found a key to the best of his knowledge and according to DC Taylor, if there had been an item of note it would be in the central notes taken by DC Gillespie.

[17] DC Taylor recalled that he searched bedroom #1 with another officer at times; he did not say who, although he said that for the most part he was searching bedroom #1 alone. He recalled that officers were coming in and out of the room and admitted that DC Gillespie would have been one of them. He said sometimes an officer might come in to ask a question or find something out. He had no specific recollection of who was there. I find that the lack of specifics on this issue is not a problem save that it means that various items may have been moved before they were photographed.

[18] I find that there is no evidence that a key to the door of bedroom #1 was in the apartment, in the possession of any of the found ins or in the possession of Mr. Burke when he was arrested. However I do not find that necessarily surprising in that if bedroom #1 was Mr. Burke’s bedroom at the time of the search, as the Crown alleges, he had ample time to dispose of any key to the door or the safe in his possession once his mother told him about the execution of the search warrant.

[19] DC Taylor testified that he also searched what was referred to during the trial as bedroom #3 but he did not find anything in that bedroom. His primary focus was bedroom #1 and according to DC Taylor, the only items that were designated to be seized and photographed were found inside bedroom #1. He took photographs of the items seized and some items that were not seized that I will come to.

[20] I accept that all of the items that were seized by DC Taylor were found in bedroom #1 but I find that the only evidence I have as to where the various items were located is his evidence and what I can glean from the photographs that he took, which DC Taylor confirmed are numbered in the sequence in which the photographs were taken. It is clear that DC Taylor was relying on his recollection of where he found the various items that he seized as he was not making notes at the time of the search and DC Gillespie did not make a note of their location save for his note about the firearm.

[21] DC Taylor said that he searched bedroom #1 in a clockwise rotation, beginning his search just inside the door to the bedroom. His search began with the small black dresser (“dresser”) with a television on top that can be seen just inside the door before the shelves with numerous baseball caps (“hat shelves”). DC Taylor testified that he then went to the hat shelves, then the bed and then the closet.

[22] DC Taylor testified that he found a letter on the letterhead of Claimspro and an envelope from SCM Insurance Services, (“SCM Insurance”) with an address of 800-150 Commerce Valley Dr. W., Markham, ON, L3T 7Z3, both in the name of Mr. Burke, on the “top shelf” of the dresser. He went on to say that the SCM Insurance envelope was the second document that he found in that “drawer” and since there are no shelves in the dresser, it is clear to me that when DC Taylor referred to the “top shelf” of the dresser he was really referring to the “top drawer” of the dresser.

[23] The letter is dated March 29, 2016 from Claimspro, the insurer, to Mr. Burke as the insured, at the address of the apartment, and the letter references an accident benefit claim dated July 18, 2014. I presume this was the date Mr. Burke was involved in the car accident that he told me about. The letter states that the insurer has arranged for Mr. Burke to be examined by a qualified Health Practitioner in order to determine if he is still qualified for Income Replacement Benefits. The letter goes on to state the particulars for the appointment that had been arranged for Mr. Burke on April 13, 2014.

[24] The envelope from SCM Insurance is addressed to Mr. Burke at 2770 Jane Street, Apt. #323. Mr. Burke testified that this was his address before he moved into the apartment. It is clear that the Claimspro letter was not inside this envelope and there is no evidence of any envelope for the Claimspro letter being photographed.

[25] Mr. Alvarez put to DC Taylor that he should have taken a picture of the inside of the drawers of the dresser before searching them. He also put to DC Taylor that there is no photograph of the documents he alleged were found in the drawers, as found, and DC Taylor admitted that this is correct and that ideally he would have taken such photographs. DC Taylor’s explanation for failing to take these particular photographs was that at first he did not know whose room this was and once he realized it was Mr. Burke’s room, based on the documents he saw, he went back to take photographs of the documents with Mr. Burke’s name on them. Once they checked under the bed and under the mattress he used the bed for taking photographs.

[26] I find however that this proposition put to DC Taylor by Mr. Alvarez is incorrect as there is one photograph; photograph #8482, which shows the inside of one of the drawers of the dresser and inside the drawer, is a document that has significance. When DC Taylor was shown this photograph he testified that this photograph was of the bottom drawer of the dresser. This photograph shows a document that is with a box of Ziploc bags and a pill bottle.

[27] DC Taylor testified initially that the document shown in photograph #8482 was located in the lower drawer of the dresser. I find that the document is the same document that is shown in a close up in photograph #8486, which photograph was taken after photograph #8482 which corroborates DC Taylor’s evidence that this document was found in the drawer. This document is a Maricann transaction receipt in the name of Omerjah Burke dated March 18, 2016. The close up photo of the Maricann document shows that it is the size of a regular 8½by 11 inch piece of paper, folded once, roughly in half.

[28] The pill bottle that is photographed in the bottom drawer of the dresser has the name of Omerjah Burke on it and DC Taylor testified that it was also found in the bottom drawer of the dresser. The pill bottle was empty and photographed but not seized. DC Taylor said he did not know if photograph #8484, which is a close up of a pill bottle, is the same bottle as the pill bottle seen in photograph #8482, but it seems to me that it is as in both cases it can be seen that the pill bottle came from Gate IDA.

[29] It was suggested to DC Taylor in cross-examination that photograph #8482, which shows this pill bottle inside the drawer, was taken after photograph #8484; the close up of the pill bottle and based on that incorrect assumption DC Taylor testified that it is possible that he had moved the pill bottle and that it fell off the top of the dresser into the drawer but he didn’t know if that happened.

[30] Again I find that the assumption put to DC Taylor was not correct because given the number sequence of the photographs, the photograph of the inside of the drawer was in fact taken before the close up photograph. I find based on the sequence of the photographs that this pill bottle was in the bottom drawer of the dresser and was then removed for a close up photo. Mr. Burke admitted that this empty pill bottle belonged to him. He said that it was for amoxicillin that had been prescribed to him in 2014 which he was using as a muscle relaxant because he was hit by a car. He stated that he must have left it behind by accident and the admitted that he probably left it in the drawer of the dresser. This is consistent with what I have already found.

[31] My finding with respect to this pill bottle supports DC Taylor’s evidence that the Maricann document was also in the same drawer when he found it. This becomes a significant finding for the purpose of my analysis.

[32] Mr. Burke was taken through the various photographs of the contents of bedroom #1 and save for a few exceptions that I will come to, he testified that he did not recognize any of the contents. In particular, he did not recognize the firearm and the green jacket where the firearm was found, the jacket where the bag of cocaine was found or the bag of cocaine, the oxycodone pills or the grey plastic bag with the drug paraphernalia. He testified that he had not seen any of these items before and that they were not his.

[33] When Mr. Burke was in bedroom #1 a few days before his arrest and was hanging out with Kevin, he testified that he did not go into the closet or see the safe in the room, the scales or the cocaine. He denied using cocaine or oxycodone, or having any of those drugs in his possession. Based on the evidence of where items were found, and in particular the firearm and the cocaine, I find that if Mr. Burke is telling the truth that bedroom #1 was rented to Kevin, that these items would not have been in plain view or caused him any suspicion that there was anything illegal in the room.

[34] Mr. Burke testified as to why the documents and items that are clearly linked to him were found in the room. This included evidence that certain items he did not want were left in a large blue bin (“blue bin”).

[35] To explain why the Claimspro letter and the Maricann invoice were in bedroom #1, Mr. Burke testified that the last time he was in the apartment was at the beginning of April 2016. He could not give an exact date but he testified that he went to see his mother, and Kevin was present too. Mr. Burke testified that his mother was present but then said that she was not. That suggests that Mr. Burke went specifically to see Kevin which was not a reason that he gave for going back to the apartment, but I suppose it is possible that he did not realize his mother was not home. Mr. Burke was not asked about this. In any event, on this date, according to Mr. Burke, he was in bedroom #1 reading his mail while he and Kevin smoked marijuana and were hanging out.

[36] Mr. Burke testified that at the time he had a prescription for marijuana which he was using as a result of the injuries he suffered in the car accident. He ordered it every month on the internet from Maricann and the marijuana was mailed to him. In the period March to April 2016, his marijuana was being delivered to Ms. Edward’s house. Mr. Burke admitted that the Maricann document, which is an invoice for marijuana, was his. He said it came with the delivery of the marijuana, and was inside the jar with the marijuana. There was also a card the size of a credit card, which he kept in his pocket, which was proof that the marijuana was prescribed legally.

[37] Mr. Burke testified that he always had the invoice and the card with him when he had the marijuana in his possession as he was often stopped by police and he wanted to ensure that he had the proper documents. He never took the card out of his pocket and he always left the Maricann document in the jar with the marijuana. He said that he took the jar with the last of the marijuana to the apartment and that he simply forgot them and probably left the jar and the Maricann invoice in bedroom #1 when he finished the marijuana when he was hanging out with Kevin. Mr. Burke did not know what Kevin did with the jar and he admitted that he had not seen the jar in any of the photographs taken by DC Taylor. He said the jar would be white with a Maricann label, but his name was not on this jar. This jar was the size of a small jam jar; a little smaller than the plastic water cups in court.

[38] I note that it was never put to DC Taylor that there was a jar that could have contained marijuana in bedroom #1. Furthermore, I find that this jar does not appear in any of the photographs entered into evidence, although it is clear that not all photographs were entered into evidence.

[39] With respect to the Claimspro letter, Mr. Burke admitted it was from an insurance company and that he was still getting his mail at the address of the apartment because this was the address they had on file because he was living at the apartment in the summer of 2015 and he never changed his address. Mr. Burke testified that Claimspro sent him “random mail”. According to Mr. Burke his mother put his mail on top of the fridge and he received this letter when he came to the apartment on the day he saw Kevin. He said he took the letter into Kevin’s room and unfolded it and just looked at it. He didn’t read it as it was not important to him. Mr. Burke testified that his lawyer would get a copy of the letter too and that his lawyer always notified him of where and when he had to go. Mr. Burke testified that he could have forgotten the letter in bedroom #1 and left it there by accident.

[40] All that Mr. Burke said about the envelope from SCM Insurance Services was that it had his old Jane Street address on it which is where he lived at the time of the car accident. This was his address before he moved to the apartment. Mr. Burke could not recall where he left this envelope but he said that it could have been in the blue bin.

[41] DC Taylor testified that the two digital scales that were seized were located almost immediately in the bottom drawer of the dresser but they were not of interest at first. As the search continued and the drugs and the drug paraphernalia were found, he went back to photograph the scales. He was not sure if he photographed them in bedroom #1 but there is a photograph in evidence that appears to show them on the bed. There is no photograph that shows them in the bottom drawer of the dresser. One scale had no cover and the other had a cover beside it which has some white powder on it. These scales are meant to look like a cell phone and they are about the size of one.

[42] DC Taylor testified that he was sure that he found a grey plastic bag that contained various articles of drug paraphernalia just inside the entrance of bedroom #1, on the floor next to the dresser. The photographs of the inside of this grey plastic bag show that it contained a box of baking soda, a Pyrex measuring cup and a box of Ziploc sandwich bags. The problem with DC Taylor’s evidence as to where he found this bag is that this bag doesn’t show up in the entry photographs, at least not in that location. It is also not shown in photographs # 8427 or 8431. In fact, I do not see it anywhere in the photographs, save for on the bed where the contents of the bag were photographed.

[43] DC Taylor was sure that this grey plastic bag was captured on the entry photographs and he testified that among the 200 photographs that he took there is a picture with the grey plastic bag in the area of the dresser on the floor. Clearly all 200 photographs were not introduced into evidence and so there is no photograph that I have seen to confirm this.

[44] DC Taylor admitted however since the photograph of the grey plastic bag was taken near the end of the search after items had been moved that he could be wrong as to where the grey bag was originally. He explained that once he seized the cocaine and digital scales that he took these pictures. Although he admitted that it was possible other officers moved something in the bedroom, DC Taylor testified that all items that were seized were from bedroom #1. I accept DC Taylor’s evidence that this grey plastic bag was found in bedroom #1 although I cannot determine its precise location in the room. In my view, that is not an issue that I need to decide.

[45] According to DC Taylor, the clothes in the bedroom # 1 closet, hanging on hangers, were all male clothing and this is consistent with what can be seen in the photographs. He did not record the size of the clothing and in particular did not note the size of the green denim jacket where he testified he found the revolver in the left inside pocket. This can be seen in photograph # 8455 and I accept that this is where the firearm was located. DC Taylor testified that he noted that the serial number was filed off the handgun and this can be seen in photograph # 8458 which shows scratch marks on the bottom of the handle where the serial number used to be. The firearm was found fully loaded with five rounds of .32 caliber ammunition and a photograph showing this was also taken.

[46] Finally, inside the left exterior pocket of a Roots jacket hanging inside the closet, DC Taylor found a clear plastic bag with a white powder, which according to the Certificate of Analyst was cocaine. DC Taylor admitted that the firearm and the bag of cocaine were concealed in the clothing hanging in the closet and that there was nothing apparent that was bulky from just looking at this clothing.

[47] There were a lot of men’s shoes in boxes on the floor of the closet and DC Taylor testified that he found no other shoe sizes in the room apart from 8.5. I accept that evidence because to the extent the boxes of shoes can be seen in the photographs, they are all size 8.5. In reexamination, Mr. Burke testified that in court he was wearing size 9 shoes that were issued from the jail, which he showed to me during the course of his evidence to prove that they were size 9.

[48] After the Defence case closed with the evidence of Ms. Edwards, the Crown sought to call evidence from the South Detention Centre, in reply, to prove that Mr. Burke was wearing a pair of white Nike Air Max running shoes, sized 8.5, (“Nikes”) when he was arrested. Mr. Alvarez objected to this evidence, taking the position that the Crown knew that the clothing was important, and in particular, the issue was whose clothing was in bedroom #1, and that this was a classic case of the Crown “splitting” its case. He also queried whether or not there would be a Charter issue in looking at Mr. Burke’s shoes without a warrant. Ms. Marrocco responded that the proposed evidence was proper reply arising from the testimony of Mr. Burke that he wears size 9 shoes and that this evidence could not have been anticipated. She also submitted that there was a reduced expectation of privacy as his shoes were in custody.

[49] I permitted the evidence to be called in reply although as I advised counsel, I did expect it to be very relevant since as a matter of common experience, the size of a person’s shoes can vary by at least a half size depending on the shoe. I did not accept that this issue of clothing size was foreseeable as DC Taylor had found recently dated documents with Mr. Burke’s name and address on them. From his perspective, and presumably the Crown’s, this evidence was sufficient and he testified that he did not believe it was necessary to check the size of the clothing. The only reason there is evidence of the shoe sizes is that it is obvious on the shoe boxes on the floor of the closet. As for the Charter issue, given Mr. Burke’s evidence I decided he did not have a reasonable expectation of privacy in the size of his Nikes and that Ms. Marrocco could call someone from the Toronto South Detention Centre.

[50] As a result, Sargent Leon Watson, from Toronto South Detention Centre, brought in property that he testified belonged to Mr. Burke. He explained how the footwear would have been seized when Mr. Burke was first brought into detention. He confirmed that Mr. Burke’s shoes were white Air Max Nike running shoes, sized 8.5.

[51] With respect to the jail issued shoes, Sargent Watson testified they do come in half sizes. A detainee will ask for the size that they want, and they only get a change of shoes when the pair they are wearing wears out. The defendant can wear the jail issued shoes or their own shoes to court. It is up to them.

[52] I find that Mr. Burke had his Nikes on when he was arrested and furthermore, based on the records that Sargent Watson referred to that he wore them to court on March 21st, which was during the time the Garofoli applications were being argued. It is also clear that Mr. Burke did not want to show me that he had the Nikes because of what can be seen in the closet. Ms. Marrocco submitted that Mr. Burke’s effort to show me his size 9 jail issue shoes was misleading and that his should go to his credibility. I agree, although I do not find it to be a major point. As for the relevance of the fact that there were only size 8.5 running shoes in the closet of bedroom #1, given the popularity of these types of running shoes and the description of Kevin, if Kevin exists, I do not find that I can draw any strong inferences from the fact that Mr. Burke’s shoe size in one pair of running shoes is the same as the shoes in the closet. Along with the point I have already made about the minimal relevance of this evidence, for that reason as well, I gave this evidence no weight in coming to my decision, save that the presence of size 8.5 running shoes in the closet of bedroom #1 certainly does not exclude Mr. Burke as the person who owned those shoes.

[53] Returning to the search, DC Taylor believed there were some female items in bags just outside the closet on the floor although there were no female items of clothing in the closet or in the drawers. No questions were asked about this and nothing turns on this in my view since Mr. Burke had a girlfriend at the time.

[54] Inside the safe DC Taylor found the cash, some jewelry and the ammunition in a clear Ziploc bag as well as other items that were photographed but not seized.

[55] Photographs # 8472 – 8474 show an open folder that contains what appears to be personal photographs of Mr. Burke and other men and women. DC Taylor testified that there were other photographs in the room apart from the ones that he photographed although he couldn’t say how many. When he was asked if there were photographs that did not have the person he believed was Mr. Burke in the photo, DC Taylor said that he didn’t pursue all the photographs because he didn’t know what Mr. Burke looked like. In other words, it is possible that there were photographs in bedroom #1 that belonged to someone else.

[56] Mr. Burke admitted that he left behind the photographs that are shown in photographs #8473 and 8474 entered into evidence, in bedroom # 1, and that they are photographs of him and his friends. He testified he had left them behind because he did not want his girlfriend to see pictures of him with other girls and so this was a deliberate decision. He stated that he could have been left behind in the blue bin but that he was not sure. Later he said that he thought the photographs were probably in the blue bin. As they appear to have been moved before DC Taylor photographed them, that it could certainly be the case.

[57] DC Taylor testified that he found a first aid book with the name Omar B. on the cover in the blue bin which he said was in the area of the closet. Mr. Burke admitted that the first aid book was his and he said that it was from a first aid course he took sometime in 2013 to 2014; he was not sure of the year. Mr. Burke testified that he did not need the blue bin for his moves and that all of his belongings fit in another blue bin. This evidence seemed pretty convenient although I could not conclude it is not true.

[58] Photograph #8453 shows two receipts from Balmoral Estates, which is the name of the apartment building, lying loose on the windowsill to the left of the closet. Mr. Burke denied ever seeing the rental receipts for the months of March and April 2016 before. He said that the last time he personally paid the rent was in December 2015 or possibly January 2016. Ms. Marrocco submitted that these two receipts show rent was paid by Interact which was how Mr. Burke said he paid the rent but I find that these receipts do not assist in the issues to be determined as there is no evidence on the face of these receipts as to whose account these payments came from.

[59] DC Taylor testified that oxycodone tablets in a pill bottle where the label was pulled off were also found on the windowsill. There were 32 pills at 9.24 grams each. These pills tested positive as oxycodone.

[60] During an exchange with Mr. Alvarez in cross-examination, DC Taylor testified that upon his initial search of that area, which I assume was the area near the dresser, he found a “copious amounts of documents with the name of Omar Burke on them.” He said there was a folder, which can be seen in photograph #8444, which was full of documents with Omar Burke’s name on them. This folder was photographed on the bed in bedroom #1 and DC Taylor admitted that this was not its original location. He was not certain where the folder was found and whether it was inside a drawer of the dresser or not.

[61] A close up of this folder in photograph #8446 shows some of the edge of a Kraft coloured envelope that appears to be the size of 8½ by 11 inches, that is sticking out. Zooming in on this envelope shows the letters “SCM Ins ” on the top line of the return address and that address is also partially visible. I find that this is clearly an envelope that would have contained mail from this insurer and this is consistent with the envelope from SCM Insurance Services that Mr. Burke admitted was his. Below this envelope in this folder, there is another Kraft coloured envelope of the same size that shows just an “S” and an “8” which I find is likely another envelope from SCM Insurance. Mr. Burke testified that he did not recognize this folder of documents. According to Mr. Burke, if any documents of his were left in bedroom #1, they would have been located in the blue bin.

[62] Mr. Alvarez stated this evidence that there was a copious amount of documents with the name of Mr. Burke on them in this folder was a total shock to him. DC Taylor admitted that when he testified at the preliminary inquiry he did not testify about other documents in the name of Omar Burke but he said the reason for that is that he was never asked. This answer was not challenged.

[63] DC Taylor said the folder of documents was never seized because he found other documents all over the room and was satisfied that it was Omar Burke’s room. He testified that he would never seize every document with someone’s name on it in order to identify a room. He admitted that in a perfect world he would photograph every item in a room but that was not viable and did not happen in this case. He said it would depend on the circumstances and that was not a priority in this case as he was looking for a firearm. DC Taylor testified that he took photographs of a sampling of the documents in the room. He admitted that they did not carefully photograph and categorize all of the documents with Omar Burke’s name on them. If he was investigating a fraud case he might have seized all of the documents.

[64] Although DC Taylor admitted that he did not itemize every item he came across in the search and that he could not specifically say what was in this folder, he insisted that Mr. Burke’s name was on copious amounts of documentation in bedroom #1. He repeated that all of the documents that he saw had Mr. Burke’s name on them and although he didn’t scrutinize every paper document he came across, he did not find any other documents with any other name other than Omar Burke or a variation of that name in bedroom #1. Had he found any documents with another name they would have been photographed. DC Taylor testified that there were documents that did not have any name on them.

[65] No photo ID of Mr. Burke was found in the apartment nor was any official documents such as passports, social insurance cards or birth certificates belonging to Mr. Burke were found there. None were found in the name of a Kevin either. There was no wallet found in bedroom #1 or in the apartment. According to DC Taylor, had a passport been found it would have been at least photographed and possibly seized. No bank cards were found that DC Taylor could recall. Mr. Burke testified that he has a driver’s license, a social insurance card, a birth certificate, and a passport. He would sometimes have his driver’s license on his person, but the rest he kept at his girlfriend’s house.

The Arrest of Mr. Burke and his Statement to Police

[66] Det. Dominey and DC Willett were the two officers who arrested Mr. Burke. Det. Dominey testified that he knew Mr. Burke from policing in the neighbourhood for about ten years. He was also very familiar with Mr. Burke’s half-sister Ms. McCormack. He testified that on April 30th he and DC Willett went to what he described as “his address”, a reference to the address of the apartment. He did not explain why he believed that this was “his” address. When they arrived Det. Dominey saw Ms. McCormack on the balcony of the apartment cooking on a barbecue. He asked two other officers who were in uniform to stay outside since it would be easy for someone to scale down the wall from the second floor balcony.

[67] Det. Dominey testified that as they approached the apartment door, the door opened and he saw Mr. Burke’s head stick up from the floor at the bottom of the door. That is when he told Mr. Burke he was under arrest etc.

[68] Mr. Burke testified that on the day he was arrested, he was at the apartment because his sister, Ms. McCormack, was having a birthday party for his niece. There were roughly ten people present in the apartment and these people were all associated to him and his sister. Kevin was not there. Mr. Burke said that he was putting on his shoes as his sister wanted him to go with her to get the birthday cake. She opened the door and told him that “white hair” was in the hallway. He looked and saw Det. Dominey in the hall way and he was put under arrest.

[69] Since the evidence is clear that there was a family gathering of some sort happening in the apartment at the time of Mr. Burke’s arrest, I draw no inference from the fact that Mr. Burke was in the apartment at that time. There is no reason to doubt his evidence on this point.

[70] After a voluntariness voir dire / Charter application I found that the Crown could rely on statements alleged to have been made by Mr. Burke to Det. Dominey and DC Willett after he was in custody and that the dispute as to what Mr. Burke actually said and meant would go to weight.

[71] According to Det. Dominey and DC Willet, after Mr. Burke had a chance to speak with counsel, they both went into the interview room, where there is no ability to video, to ask Mr. Burke whether or not he wanted to make a statement on video. Mr. Burke was very clear that he did not want to make a statement. Det. Dominey testified that he decided to ask Mr. Burke some questions and the Crown’s position is that in response to those questions Mr. Burke made a number of admissions.

[72] As I said in my oral reasons for admitting the statements of Mr. Burke, I found Det. Dominey to be a very strong witness. He had a very even demeanour and seemed confident in the answers that he gave and I have no hesitation accepting his evidence. That said, I have concluded that the evidence that he gave of the statements that he alleges Mr. Burke made is not sufficiently reliable to give them any weight as admissions because they were not recorded in any way. I find that for the statements that Mr. Burke is alleged to have made to have any incriminating value that I would need more reliable evidence of exactly what he was asked and what he said. Furthermore, I have been able to reach the conclusions that I will come to without relying on the statements the Crown alleges that Mr. Burke made.

[73] Det. Dominey testified that he told Mr. Burke that he wanted to start with the gun found “in his room at his mother’s apartment” and that Mr. Burke immediately said, with a little bit of aggression “it’s my apartment – I pay the rent”. DC Willett however did not recall any change in Mr. Burke’s demeanour. When asked if his mother lived with him, he said she did. This is an incriminating statement but Mr. Burke did not admit that he said it. He did admit that he said that his mother was living at “my apartment” and that “I pay the rent” and said that he told Det. Dominey this because she was living at an apartment in his name and he was helping her with the rent.

[74] In cross-examination, Ms. Marrocco made much of the fact that Mr. Burke in his evidence in chief had testified that “my mother lives at my apartment and I pay the rent”. Mr. Burke maintained his position that he did not live at the apartment but that since the apartment was in his name, he considered it “my apartment”. He helped his mother pay $200 out of the $1,200 in rent. Mr. Burke admitted that he did not tell Det. Dominey that he didn’t live in the apartment and about Kevin but he had been told by his counsel not to speak to police. He testified that he told them that it was his apartment and he paid the rent to “get him out of there”.

[75] Ms. Marrocco submitted that this was an odd statement in that Mr. Burke did not tell Det. Dominey about Kevin. I found that I could not rely on this statement as an admission as Mr. Burke denied saying that he lived with his mother and what he did admit saying was consistent with his evidence at trial; he was on the lease and he was helping his mother with her share of the rent.

[76] Det. Dominey testified that he then asked Mr. Burke “do you want to tell me about the gun – where you got it – anything?” and that Mr. Burke replied “What do you want me to say – I’m not admitting to anything.” Det. Dominey testified that he then asked Mr. Burke “aren’t you worried about that gun coming back to a shooting or something?” and Mr. Burke responded “nothing is coming back to the gun – trust me.” Det. Dominey then asked Mr. Burke “how do you know?” to which he said Mr. Burke said “trust me bro”. When he then asked about the drugs in his room Mr. Burke changed the subject and asked to call his mother. Det. Dominey testified that he immediately stopped talking to him and arranged for that phone call.

[77] Mr. Burke had a different recollection of his conversation with Det. Dominey about the gun. He testified that when Det. Dominey asked him if the gun was going to come back to any shootings, that he told him that he “didn’t know nothing about the gun”, but Det. Dominey kept pressing on the subject. He then said that the he was not going to be connected to any shootings or murders. He denied referring to Det. Dominey as “bro”. Although as Ms. Marrocco argued it seems strange that Mr. Burke did not simply state that the gun was not his, he had been told to remain silent and his version of what he said as compared to Det. Dominey’s is not that different. On either version I would not consider the statement strong enough to amount to an admission that the gun was Mr. Burke’s.

The Evidence of Mr. Burke and the Defence Witnesses

[78] Mr. Burke admitted that he leased the apartment with Ms. Khan who he said was a friend of his who had a child. He also admitted living in the apartment from the summer of 2015 to November 2015 and that bedroom #1 used to be his room. Ms. Khan had the other two bedrooms: one for herself and one for her son.

[79] Of the $1,200 owing monthly for rent, Mr. Burke testified that Ms. Khan paid $700 and he paid the remaining $500. Ms. Khan moved out at the end of October 2015, and at that point, Mr. Burke testified that he had to move out of the apartment as well because he could not afford the rent by himself. He stayed only a couple of more weeks and then moved to his girlfriend’s house; Kaylee-Ann Edwards. Mr. Burke testified that he was getting more serious with his girlfriend. She was living at 10 Eddystone Avenue, near Jane Street and Sheppard Avenue, in what Mr. Burke described initially as a three-bedroom house that her grandfather had left her. He said that did not pay her any rent. The apartment is close to Jane Street and Finch Avenue, and so I note that these two addresses are about eight blocks apart.

[80] I found Mr. Burke’s description of Ms. Edward’s residence very confusing. Initially he said that it was a house that was three stories high. He then said that it was comprised of two units, a lower and upper unit and that each unit had three floors. He then agreed that it was only two floors high and that there was no such thing as the third floor. Again, he said he was being confused with his old Jane Street address. He then said that the third floor at Eddystone was a fire escape. He also said that it had three bedrooms. In fact this was a two story townhouse with four bedrooms.

[81] In cross-examination, when asked about the unit number at 10 Eddystone where Mr. Burke was living with Ms. Edwards, he paused and said it was “like 302” and that he was not sure. When asked if he was having difficulty remembering, he answered that even #201 was a blur to him sometimes. He testified that his most recent address has been on Keele Street, which was the address where he was required to live as a result of his bail conditions. When it was put to him that the number at Eddystone was #215, Mr. Burke agreed.

[82] Mr. Burke testified that when he moved out of the apartment that he rented his room to a good friend named Kevin for $700 a month and so he continued to pay $500 in rent. Kevin was a childhood friend from high school, with the nickname of “Rex” who was two years older than Mr. Burke. He had known him since Grade 9 when they were both at Western Centennial although Kevin would have presumably been in Grade 10 or 11. Mr. Burke testified that he did not know Kevin’s last name. According to Mr. Burke in late November 2015, Kevin told him that he had broken up with his girlfriend. Mr. Burke did not know the name of his girlfriend or the last known address of Kevin’s girlfriend. Kevin told that he was working and he trusted him, and trusted that he would be able to make the rent payments. Mr. Burke did not do any sublease paperwork with Kevin, nor did he tell property management that he had rented his room to him. He never expected Kevin to default on the agreement. Mr. Burke said that he did not know if Kevin had a criminal record or if he was dealing drugs.

[83] Mr. Burke testified that when Kevin moved in, Kevin gave him $700 in two amounts, totaling $1400 for the first and last month’s rent. Mr. Burke admitted that he should have banking records that would show this, but they were not produced. He started to give Kevin the money to pay the rent as of January/February 2016 and he also admitted that his bank records would show the $500 withdrawals in those two months, but again those bank records were not produced.

[84] Mr. Burke testified that Kevin was also black, wore his hair in cornrows and that he was an inch taller than Kevin. He stated Kevin was not in any of his photographs that were photographed by DC Taylor in bedroom #1.

[85] According to Mr. Burke when he moved out of the apartment he left his bed and dresser there to make it easier for Kevin who had no furniture. He did not need his furniture as he was sleeping with his girlfriend in her bedroom. There were then still two vacant bedrooms in the apartment. Mr. Burke testified that he took all of his clothing and all of his belongings, including his ID with him. He did not leave any clothing, shoes or hats in his bedroom. The only furniture that he had left in bedroom #1 was the bed and the dresser.

[86] Mr. Burke testified that when he was living in the apartment, he did not have a lock on the door of bedroom #1. He said that Kevin must have installed the lock. Mr. Burke also testified he did not have a key to that bedroom, although he did have a key to the front door of the apartment.

[87] According to Mr. Burke, from the time he moved out of the apartment in November 2015 until April 2016 when he was arrested, he went to the apartment twice a month to pay the rent and to see his mother. A couple of times Kevin was there, but he was not there all the time when Mr. Burke attended.

[88] Mr. Burke said that after Kevin moved in, Kevin would give him cash for his share of the rent and he; Mr. Burke, would put the money in his bank account and then he made the rent payment by going to the management office and paying the rent with his bank card. His mother moved into the apartment in December of 2015, as she was having bed bug problems in the apartment where she was living. She took the first bedroom on the right-hand side of the hall. Mr. Burke said that he was paying the $500 rent for his mother and the amount of Kevin’s rent did not change. Mr. Burke continued to pay the monthly rent to the management company. There was still no one in the third bedroom at the time.

[89] According to Mr. Burke, in February of 2016 his sister Ms. McCormack moved into the apartment with her son and two daughters. All three of them were staying in the third bedroom. Ms. McCormack was paying $500 in rent and Kevin’s rent was reduced to $500. Mr. Burke’s mother’s share of the rent was now $200. At this point, according to Mr. Burke, Kevin started making the rent payments by going to the management office. It was easier this way as Mr. Burke was not living in the apartment.

[90] As for the whereabouts of Kevin, Mr. Burke testified that he saw Kevin earlier that month, which I presume was a reference to February 2018. He had asked around if anyone had seen Kevin as they have mutual friends. No one had. When people heard that he had been arrested, Kevin changed his phone number and he was not at any of the places that they usually hung out. Mr. Burke added that in the Jane and Finch neighbourhood, no one likes to tell on other people.

[91] Mr. Burke admitted that his mother told him about the search warrant being executed at the apartment on April 5th. He did not know that drugs had been found, but his mother did tell him that a gun had been found. Mr. Burke admitted that he knew that the police believed that he was accountable for the items found in bedroom #1 and that they were looking for him. Mr. Burke testified that he was looking for Kevin, as according to Mr. Burke, Kevin was the one who needed to take responsibility for these items.

[92] Ms. Thompson, Mr. Burke’s mother, corroborated a lot of the evidence of her son. She testified that her son lived in the apartment before she moved in around December 28, 2015. She said that her son paid her rent as she had to throw out all of her belongings due to a bedbug problem in her old apartment. Ms. Thompson confirmed that Kevin was living in the master bedroom; bedroom #1. She did not see Kevin regularly as he usually came back to the apartment once she was in bed, and he left before she woke up. Kevin was not there at the time of the raid, and she has not seen him since.

[93] Ms. Thompson did not know Kevin before he moved into the apartment. She did not know what his street name was; she knew him only as Kevin. Ms. Thompson testified that she gave the money to Kevin for the rent but she said that she did not know if Kevin was going to the property management to pay the rent. This evidence was at odds with the evidence of Mr. Burke who said he was paying his mother’s share of the rent and giving the cash to Kevin.

[94] Ms. Thompson testified that her son was coming to the apartment a couple of times per month. He was still getting mail there, although not a lot. She would put his mail, which she said was mostly “garbage mail,” on top of the fridge. She never saw a delivery of medical marijuana to her apartment, although she did see jars in the garbage.

[95] Ms. Thompson denied recognizing the clothing hanging in the closet of bedroom #1 – in particular, the two jackets where the firearm and drugs were found – as belonging to her son.

[96] Ms. Thompson testified that she and her daughter’s bedrooms had locks for their doors too, and that her door had a lock. She testified that the lock on her door looked the like the lock in photograph #8443. They didn’t have keys to those two doors, however. I have reviewed the photographs of the bedroom doors and this evidence appears to be correct subject to possibly photograph #8438, which shows a round silver door knob where no key hole is visible but Ms. Thompson was not asked about that. Her evidence was very clear that all three bedrooms had a similar lock to the lock to bedroom #1, save that Ms. Thompson and her daughter did not have keys for those locks.

[97] Ms. McCormack was also present when the police raided the apartment. She knew the person living in bedroom #1 as Rex or Kevin and she testified that he was there when she moved into the apartment. Her mother was already there as well. According to Ms. McCormack, her brother was living with his girlfriend, Ms. Edwards, at Eddystone.

[98] Ms. McCormack testified that she was not friends with Kevin; she just knew him. She did not know Kevin’s last name either. She knew that he used to go to school with her brother. The last time she saw Kevin was maybe 24 hours before the raid, and she has not seen him since.

[99] Ms. McCormack also did not recognize the two jackets or any of the clothing that was photographed in the closet of bedroom #1 as belonging to her brother and she testified that she didn’t know that a gun or drugs were in that bedroom.

[100] The Defense also called Kaylee-Ann Edwards who testified that she was in a relationship with Mr. Burke in the fall of 2015 while he was living at the apartment. Her grandfather passed away in June 2015 and left her the house at 10 Eddystone. She confirmed that her street address is # 215, that it is a 4-bedroom house and that there was no reason for Mr. Burke to have thought it was a 3-bedroom unit.

[101] Ms. Edwards testified that after Mr. Burke moved out of the apartment, he lived with her from the fall of 2015 to April 2016 when he was arrested, and that he was with her every night and that he never missed a night with her until he was arrested. She also testified that he lived with her for a “couple of years”. When it was pointed out to her that this evidence was inconsistent, she denied that he lived with her while he was on bail or that they lived together for two years and said that she was thinking about how long they were together. Ms. Edwards also confirmed that Mr. Burke received mail at her place and that his medical marijuana came to her home in the mail for him. With respect to Kevin, Ms. Edwards testified that she knew another person whom she met, as Rex but that she did not know his name.

[102] It was clear to me in the couple of days before Ms. Edwards testified that Mr. Alvarez was having difficulty in arranging for her to come to court to testify. Ms. Edwards denied that she was not on good terms with Mr. Burke, and testified that she always wanted to cooperate. She denied receiving any threats, money or having any concerns for her safety. Ms. Edward said that she did not respond to emails from Mr. Alvarez on the previous Friday because she was at a funeral. She testified that she had purchased a brand new phone since Friday, and so she could not produce any of the messages from Mr. Alvarez and her responses.

The Evidence of Det. Margetson

[103] The Crown called Detective John Margetson as an expert witness. After hearing about his qualifications as his CV was reviewed and being advised that the Defence took no issue that he was properly qualified, I qualified him to give opinion evidence with respect to the trafficking of cocaine and oxycodone, the modus operandi of drug traffickers and the distribution of drugs including pricing, packaging, quantities and concealment methods.

[104] With respect to the oxycodone pills that were seized by police, Det. Margetson testified that they appeared to be Percocets, which contain 5mg of oxycodone and the rest is acetaminophen. He testified that because these pills appear to be of a low strength they would not be popular with someone who had an opioid addiction but it could be used by a heavy cocaine user if it was needed to take the edge off. These pills might be used recreationally. Because the pills were found in a pill bottle where the label with the name had been scratched off, according to Det. Margetson, one could reasonably assume that the bottle of pills was sold to someone else, not the person to whom the pills were prescribed. With respect to the quantity of oxycodone found, Det. Margetson was very fair. He testified that his opinion could go “either way” and that this oxycodone “could be” for the purpose of a recreational user who was a heavy user of cocaine Someone selling drugs might want an inventory of different drugs and Det. Margetson testified that a number of times when in police operations they have bought cocaine, they have been offered oxycodone.

[105] With respect to the powered cocaine that was seized, Det. Margetson explained how it could have been converted to crack cocaine if it was mixed in a 3 to 4:1 ratio with baking soda. He explained that the process involves using a Pyrex dish to heat the cocaine and baking soda until it dissolves and a precipitate forms once it is cooled and hardened. The tools to do this included powered cocaine, heat, a Pyrex dish, sometimes a scale that can be helpful to quantify the ratio, and a place to cool the product.

[106] With respect to the quantity powered cocaine seized of 14.49 grams, which is close to the ½ ounce mark. Det. Margetson testified that it is a common weight for trafficking in and of itself at the mid to lower street level or possibly for the purpose of mid-level distribution to street level dealers. In his opinion it is not common for this quantity to be in someone’s possession for personal use, although Det. Margetson admitted that this is possible. One does get a discount in the cost to purchase the cocaine as you go up in weight. In his opinion, the street value of this quantity of cocaine if sold in one amount would be between $700 and $800. If sold at the gram level, it would sell for between $80 and $100 per gram resulting in a total of $1,160 to $1,450. A half gram, which is very common as a quantity for sale would sell for in the range of $40 to $60 dollars.

[107] In Det. Margetson’s opinion, most people consume powered cocaine by snorting it up their nose and so they have no paraphernalia in their possession. Sometimes a piece of rolled-up paper or short straw will be used and the cocaine can also be “cut” on a glass or mirrored plate because when it is of better quality, it has to be broken down a bit.

[108] Det. Margetson testified that scales are not typically used if the cocaine is for personal use. In his opinion, the presence of scales is more typical if one is trafficking. One would tend to use a scale when selling cocaine unless the purchaser trusts the dealer and is prepared to accept the weight as presented. When Det. Margetson was shown a photograph of the two scales seized in this case, he said they were generally more typical of a sub-ounce purchaser given the small platform, the fact that they are portable and discreet and could be used at the street level. However, Det. Margetson also testified that some persons who possess cocaine for personal use will also have scales.

[109] With respect to the seizure of the firearm, Det. Margetson testified that historically there has been violence around the trade of trafficking in cocaine and so it is common to find illegal handguns in the possession of someone who traffics in cocaine. The product itself is valuable and there is a lot of money to be made and so a handgun is used for protection.

[110] Det. Margetson was asked about the cash that was seized in the amount of $3,150. He commented on the fact that there were 31 - $10 dollar bills and 1- $50 dollar bill. He stated that in drug trafficking most of the trades are done in cash and it is often the case that a large amount of cash is “floating around” to support the lifestyle of the drug trafficker. However he did not consider this “an outlandish amount of money”. He said if drugs are being sold at the street level, it is more common to see $5, $10 and $20 bills. In the mid-level, one might find larger bills. It would depend on the level at which it was being sold.

[111] Det. Margetson was asked to give a final opinion based on a hypothetical based the facts of what was seized in this case. He stated that, at the very least, there was an inference that the cocaine was in the possession of someone for the purpose of trafficking. He reviewed his reasons for drawing such an inference which included the fact that one-half ounce is a larger amount of powdered cocaine, and that given the presence of the baking soda, a Pyrex dish, sandwich baggies, scales and the cash, it was more likely that the powdered cocaine was being produced into crack cocaine. As for the baggies, Det. Margetson testified that they are the typical packaging for a mid-level dealer.

[112] Detective Margetson did add, as a caveat, that someone could purchase a one-half ounce of powdered cocaine for personal use, although he said that this would be difficult, and that the rest of the items like the Pyrex dish could normally be found in anyone’s kitchen. I note however that in this case I have found that these items were found together in a plastic shopping bag in bedroom #1. Considering all of the facts, including the presence of a handgun, in Det. Margetson’s opinion the stronger inference is that the cocaine was in this person’s possession for the purpose of trafficking. He testified that the more indicia of trafficking the stronger the inference. In cross-examination, Det. Margetson said that although the stronger inference was that it was in someone’s possession for the purpose of trafficking, it was not a quantity that could not be consistent with personal use at the high end. He could not say that that was not an inference that was available.

[113] Mr. Alvarez pointed out to Det. Margetson that his report referred to an AK47 and body armour and he conceded that this was originally a factor he considered. However Det. Margetson testified that the fact there was only a handgun does not diminish his report and in fact a hand gun is more consistent with the drug trade as it can be easily concealable. In 27 years he had only seen a drug dealer wearing body armour on one or two occasions.

Analysis

Applicable Law

[114] I now turn to my analysis. Since Mr. Burke testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.) [1] apply. I must acquit Mr. Burke if I believe his evidence and the evidence of the Defence witnesses (collectively “his evidence”) or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt. [2]

[115] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. Burke and the Defence witnesses, I am entitled to consider it in the context of all of the other evidence. [3] However, I must remind myself that this is not a credibility contest. [4] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of the Crown witnesses to that of Mr. Burke and the Defence witnesses. [5] As I am faced with contradictory positions of who was in possession of the contents of bedroom #1, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit. [6]

[116] Counsel agreed that to a large extent the Crown’s case depends on circumstantial evidence. I have considered the recent decision of the Supreme Court of Canada; R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 which reviewed how circumstantial evidence should be explained to a jury. The principles of law that I will apply are as follows:

a) I must be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the circumstantial evidence is that Mr. Burke is guilty;

b) This requires me to not be too quick in “jumping to conclusions” and to consider other reasonable possibilities which are inconsistent with guilt;

c) Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation;

d) I must also assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn from that evidence.

[117] However, the circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), my application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif (2011), [2011] A.J. No. 42, 92 W.C.B. (2d) 259 (Alta. C.A.), at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

Assessment of the Credibility and Reliability of the Witnesses

[118] The key Crown witness was DC Taylor and apart from the fact that he had not testified before about the presence of “copious documents” with Mr. Burke’s name on them, being in bedroom #1, his credibility as a witness was not challenged. I had no difficulty with this aspect of DC Taylor’s evidence. His statement that he had not been asked about this at the preliminary inquiry was not challenged. The main issue was the reliability of DC Taylor’s evidence and in particular his evidence as to where various items were located in bedroom #1 given that with the exception of the firearm, DC Gillespie did not note this as the central note taker. I have taken this into account in assessing DC Taylor’s evidence. I found however that he was quite fair in admitting when he was not sure, based on his memory, where a particular item was first located.

[119] As for Mr. Burke, he has a criminal record but I did not find it very important in considering his credibility. Ms. Marrocco submitted that Mr. Burke made a marked shift in his evidence-in-chief when he was talking about the rent. It is her position that in the early part of his evidence, he said that at the time of his arrest, his mother was paying $200, his sister $500 and Kevin $500. When he was confronted with his statement to Det. Dominey that he paid the rent, he said that what he meant was that he helped his mother pay the rent. She submitted this looked like he was fabricating his evidence on the fly. I did not believe this was the case as I heard his evidence and even if this is the case, since Mr. Burke was paying the rent for his mother, I do not see it as a serious inconsistency.

[120] For the most part Mr. Burke’s evidence was internally consistent and he was responsive to the questions asked by Ms. Marrocco. I determined the credibility of the evidence of Mr. Burke and rejected aspects of it mainly by comparing it to the hard evidence in the photographs and to some extent whether or not his evidence was inherently probable or not and did it accord with common sense.

[121] In Ms. Thompson’s statement to police, she told them that Kevin used the room on the left side of the hallway. As Ms. Marrocco pointed out, she admitted that she lied when she spoke to police in order to protect her son. In cross-examination, Ms. Thompson admitted that she lied to police when she told them that she had rented a room from a person named Kevin on Kijiji. She knew her son was on the lease and she was scared for him. She wanted to make it look like it was Kevin’s place. She admitted that when she told police that “it is his apartment”, that this was a reference to Kevin, and that this was a lie. Ms. Thompson clearly loves her son, which is a huge motive for her to help him. It seems clear that he was very good to her and was helping her pay her rent. Having admitted to lying about this aspect of her statement to police and her reason for lying, I find that I cannot rely on any of her evidence that corroborates the evidence of Mr. Burke.

[122] Mr. Alvarez relied on Ms. Thompson’s statement to police about Kevin and in his closing argument he addressed the issue that I had when this evidence of what Mr. Burke’s mother told police was introduced. I pointed out to him that it was a prior consistent statement and that I could not rely upon it. Mr. Alvarez submitted that these witnesses gave statements to police that had some probative value and the circumstances of those statements enhanced their credibility.

[123] Mr. Alvarez did not provide any case law to support his position that I should consider the statement of Ms. Thompson to police as enhancing her credibility. I am aware of a recent decision from our Court of Appeal, R. v. Khan, 2017 ONCA 114, [2017] O.J. No. 745 where the court reviewed the recognized exceptions for admitting prior consistent statements. In that case the court found that the trial judge was permitted to rely on what he considered to be a spontaneous utterance by the defendant to police as “narrative as circumstantial evidence” and held that the fact the statement was made, and the context in which it was made can be probative and help in assessing a witness’s credibility; at para. 34.

[124] In this case, if the evidence was that Ms. Thompson made a spontaneous utterance to the officers at the time of the execution of the search warrant that bedroom #1 belonged to Kevin, that statement might fall within this exception recognized in Khan. That is not the case however and Mr. Alvarez fairly admitted that it was possible that there was some collusion between Ms. Thompson and her daughter after police knocked the door down. That in and of itself in my view removes any relevance to the statement.

[125] Even accepting Mr. Alvarez’s argument, I did not find that this aspect of Ms. Thompson’s statement to police assisted in assessing her credibility or the credibility of this evidence given her admission that at the time of making her statement she came up with this idea of renting a room from an ad on Kijiji. Simply put, how would I know if she did not also come up with the idea that the person she rented from on Kijiji was named Kevin, a name she pulled from thin air?

[126] Ms. McCormack has a criminal record that includes a conviction for theft from 2008 and two counts for failing to comply with bail in May 2015. I did not find her record that material to my assessment of her credibility. She was also not forthright with police. She admitted that she gave them the impression that she was temporarily staying at the apartment and that she had another residence and that she did not know the “roommate”. She did police there was another “roommate” living in the bedroom on the left but she did not mention someone named Kevin or Rex to police. Her explanation was that she did not want to give a statement. Given my views about Ms. Thompson’s evidence I have the same concerns with the evidence of Ms. McCormack who naturally wanted to support her brother.

[127] As for Ms. Edwards, she has no criminal record. Ms. Marrocco pointed out that she changed her evidence as to how long she and Mr. Burke lived together on a couple of occasions which makes it sound like they were living together during the time Mr. Burke was on bail. That is a concern and it is also troubling that she conveniently changed her phone on the weekend before giving evidence, so the messages exchanged with Mr. Alvarez cannot be seen. Ms. Edwards did not testify to what her current relationship with Mr. Burke is and whether or not she still hoped to get back together with him when he is released from jail so I could not rule out that she may have a similar incentive to give evidence helpful to his case as his mother and sister have.

Findings of Fact

[128] As Mr. Alvarez submitted, the fact Mr. Burke was on the lease for the apartment does not mean that he was living in the apartment. The police had no evidence that Mr. Burke had ever been seen at the apartment except on the day of his arrest. I have also explained why because of reliability concerns I am not prepared to rely on Det. Dominey’s evidence that Mr. Burke admitted that he was living at the apartment.

[129] Nevertheless, I have concluded that I do not accept the evidence of Mr. Burke or the other Defence witnesses that there was a person named Kevin renting bedroom #1, that the contraband must have belonged to Kevin and that Mr. Burke was living with Ms. Edwards continuously in the months leading up to his arrest. I have concluded, based on the evidence of the contents of bedroom #1, that the only reasonable inference to be drawn from the evidence that I do accept is that the contents of bedroom #1 that were photographed and those items that were seized, were in fact Mr. Burke’s possessions.

[130] Notwithstanding the concerns about the credibility of Mr. Burke and the other Defence witnesses that I have set out, as I will explain, my findings of fact have been driven largely by the undisputed evidence; mostly based on the photographs of the contents of bedroom #1 and to some extent the evidence of DC Taylor and the reasonable inferences I have drawn from that evidence. Those reasons are as follows.

[131] As I have already stated, Mr. Alvarez submitted that I should not accept DC Taylor’s evidence that were dozens of documents in bedroom #1 with Mr. Burke’s name on them. He submitted that DC Taylor’s evidence that he would not seize all of the documents or even photograph them so that a record could be kept doesn’t make sense. He also pointed out that there was no reference to these copious documents in central notes. I find however that DC Taylor’s explanation for why he did not seize or photograph every document that he found in the bedroom #1, makes sense. As he put it, this was not a fraud case. He took photographs of a sample of the documents that he found and was personally satisfied that he was in Mr. Burke’s bedroom. As I will come to, given what I have found with respect to the contents of the folder of documents, based on a photograph of it, there is evidence to support this evidence of DC Taylor.

[132] With respect to DC Taylor’s evidence that he did not see a name other than Mr. Burke’s on documents found in bedroom #1, as Mr. Alvarez pointed out DC Taylor admitted that he didn’t look in detail or itemize all of these documents. Mr. Alvarez submitted this was illustrated by the fact that when DC Taylor referred to the Claimspro document, he gave the wrong date. He submitted that it is conceivable that DC Taylor could have missed other names on documents as he was focused on Messrs. Lee and Burke. Although I did not find the error with respect to the date of the Claimspro document to be important, I accept that DC Taylor may have missed documents in the name of another person named Kevin although I find it unlikely. There is no sign of a significant amount of documents being in bedroom #1 save for this folder of documents, which for the reasons I will come to, I find contained at least one document belonging to Mr. Burke and likely two. Having made that finding the only logical inference is that the rest of the documents in that fold were his. This would explain what DC Taylor saw as copious documents in the name of Mr. Burke. Furthermore, if there was a person named Kevin living in bedroom #1, I would expect that there would be some sign of someone named Kevin living in bedroom #1. No credit card bills or other document was found with his name on them and I would have expected there would have been lots of those kinds of documents in bedroom #1 as the Defence position is that Kevin was only renting this bedroom i.e. there was no suggestion that he had another address. Furthermore, as Ms. Marrocco submitted, it was never put to DC Taylor that he saw documents with the name of Kevin on them or that he missed documents in the name of Kevin.

[133] Mr. Alvarez also complained that the items were not photographed as they were found. DC Taylor was writing his notes a day later and had to rely on Central Notes and his memory. All DC Gillespie could add was that these items were found in bedroom #1. He submitted that the issue was compounded by the fact that other officers were also searching bedroom #1 and so DC Taylor couldn’t say if items had been moved before he saw them. I accept all of these submissions, which as I have already said go to the reliability of the evidence of DC Taylor. As I have said I will take these concerns into account when I assess the evidence of DC Taylor in coming to my findings of fact.

[134] As Mr. Alvarez submitted there is also an absence of certain evidence. There were items not located in bedroom #1 that one would expect to find if this was Mr. Burke’s bedroom. I would say that typically a driver’s licence would be in someone’s personal possession so that is not of concern but I would have expected Mr. Burke’s social insurance number card, his birth certificate, and the passport he said that he had to be kept in bedroom #1. That said, those types of documents were not found in the name of Kevin either. As Mr. Alvarez argued, it may be that DC Taylor missed certain documents. Furthermore, I have no evidence save for Mr. Burke’s testimony that he in fact had a passport at the time.

[135] Mr. Alvarez also argued that there is no evidence that Mr. Burke had a key to the safe or to bedroom #1, but as I have already said, Mr. Burke had ample time to get rid of any keys that might tie him to bedroom #1. Any sensible person would have done so and Mr. Burke struck me as a smart man.

[136] Mr. Alvarez pointed out that there were no finger prints or DNA evidence on the prohibited items that were seized but there is no evidence that they were ever tested for finger prints and so I do not draw an adverse inference from the absence of this evidence.

[137] Ms. Marrocco relied on the different explanations that Mr. Burke gave for the two pieces of mail in his bedroom. She submitted there is a lot of probative force from the fact that a Claimspro letter and a Maricann invoice were found when the search warrant was executed, and that they were both documents received within days of the execution of the warrant. She argued that it is simply generally improbable that Mr. Burke would discard his mail in someone else’s bedroom. I agree with that submission. If the letter from Claimspro was not important and he already had the information from his lawyer, why open the letter at all?

[138] What I found to be the most probative however is the conclusions that I could easily draw from the Maricann invoice itself. First of all, since Mr. Burke had a small card in his pocket proving that he had a prescription for marijuana, it does not make sense that he would feel the need to keep the invoice inside the jar with the marijuana. If he did feel the need to do so, then the Maricann invoice that can be seen in the photographs should have had many more fold lines and looked at least somewhat tattered, given that on Mr. Burke’s evidence he would have had to fold it up enough to get into a jar that was the size of a small jam jar or plastic cup. When I pointed this out to Mr. Alvarez he responded that the Maricann invoice could have been rolled up inside the jar and that it could only have been taken out three or four times. I do not accept that submission as I do not see how what appears to be an 8½ by 11 inch piece of paper could be rolled to avoid creasing it and even if it was the case, if it was then put into the jar with the marijuana it would not look as pristine as it appears in the photograph.

[139] Also significant is that I accept the evidence of DC Taylor that the document shown in photograph #8482 was located in the lower drawer of the dresser. I have found that this document is the Maricann invoice and that it shown in a close up photograph #8486, which photograph was taken after photograph #8482 which corroborates DC Taylor’s evidence that this document was found in the drawer.

[140] For these reasons I reject Mr. Burke’s evidence that the Maricann invoice was left in a jar after the marijuana was finished in bedroom #1 as he testified to. In my view this would be enough to convict Mr. Burke, but there is more.

[141] There can also be no dispute that there was a folder of documents somewhere in bedroom #1, that was photographed on the bed and that clearly has a document from an insurer that Mr. Burke admitted he was using in that time frame. This could be just a coincidence but in the context of all of the other evidence, in my view it becomes more significant.

[142] There is also the fact that Mr. Burke lied when he testified that Kevin changed the door knob on the door to bedroom #1 that included a key lock. This is shown in the photographs of that door. This evidence however was contradicted by his own mother. The fact he lied about it suggests that he wanted to give me another fact to distance himself from bedroom #1. Given I find that the door knob to bedroom #1 was not changed, the fact that this door had a working lock when it was Mr. Burke’s bedroom, which would have allowed him to lock the door to bedroom #1 while he was away makes obvious sense given what was in it and given his mother, sister and three children were living in the apartment. I have already explained why I find the fact that he was not found in possession of a key to that lock or to the safe to be insignificant.

[143] I also found that Mr. Burke’s confusion and inability to describe 10 Eddystone raised serious concerns about the credibility of his evidence that he lived there from the fall of 2015 until his arrest. He made fundamental mistakes with respect to the details of Ms. Edward’s residence. In his evidence in chief, he called it a “house” and Ms. Edwards did the same. In cross-examination, Mr. Burke said it was attached on both sides which I understand is correct as it is a two-story townhouse but Mr. Burke said it was part of a six-story apartment house with three floors for each unit. He also made an error with the number of bedrooms although I find that less important. If however he had his marijuana and other mail coming to this residence I would have expected him to know the correct unit number.

[144] First of all, if Mr. Burke indeed lived every day with Ms. Edwards at 10 Eddystone from November 2015 until his arrest six month later in April 2016, I would have at least expected that he would remember what the residence was like and important details such as whether or not it was a house or how many floors it has. Although I can excuse the fact that he did not remember the postal code I would have also expected that he would remember the unit number. If Ms. Edwards was his girlfriend, then it must be the case that they did not spend very much time at her house as even a few visits would have made it clear what kind of residence it was. He said that he gave the number of 302 because he was confusing it with his old Jane Street address although I note that the number of his unit there was 303, not 302.

[145] I also had serious concerns about Mr. Burke’s general inability to provide any particulars with respect to this person named Kevin. Although in my experience it is not unusual for young men to be referred to by a nick name, Mr. Burke said that Kevin was a good friend and yet he did not know his last name or, his girlfriend’s name, or his prior address. Ms. Marrocco argued that it was also strange that according to Mr. Burke, this person left no trace and cannot be found and according to Mr. Burke, no one could help give him any information to find this person which she submitted does not ring true. She submitted that since Kevin was not in the apartment when the search warrant was executed and everyone seemed to believe that the police were looking for Mr. Burke, there would be no reason for Kevin to disappear and leave all his belongings behind. She submitted that he had no liability on everyone’s perspective, and so to disappear without gathering his valuables seems very strange.

[146] However, as Mr. Alvarez submitted in reply I accept that when there is a raid like this, everyone in the neighbourhood knows about it and I agree that this would give Kevin, if he exists, a strong incentive to disappear. He could expect that Mr. Burke would eventually tell police it was his room and giving up his belongings would be a small price to pay for avoiding facing charges like this.

[147] It is for all of these reasons that I do not accept Mr. Alvarez’s position that Mr. Burke did not do a great job of cleaning out bedroom #1 when he moved out. I accept that Mr. Burke may have been spending nights at Eddystone with Ms. Edwards but for these reasons I reject his evidence that he moved all of his belongings out of bedroom #1 and rented it to a person named Kevin. I find that the Crown has proven beyond a reasonable doubt that he was the one who was using bedroom #1 and the time of the execution of the search warrant and that all of the contraband was his. Various affidavits were filed on consent, establishing the rest of the elements of the firearm offences set out in Counts 6 through 8 and 12 and 13 of the Indictment. Those were not disputed by the Defence.

[148] This conclusion means that Mr. Burke was also in possession of the cocaine and oxycodone that was seized. Given the opinion of Det. Margetson, although I find that the stronger inference is that these drugs were in Mr. Burke’s possession for the purpose of trafficking, particularly given the presence of the two digital scales and the items that would normally be found in the kitchen but were in the bedroom; likely to produce crack cocaine, Det. Margetson admitted that there is also an available inference that Mr. Burke had these drugs in his possession for personal use. There is evidence that he had been in a car accident and so the oxycodone could have been purchased by him illegally for personal use and it is possible, based on the evidence of Det. Margetson, that he was buying powdered cocaine in bulk and making his own crack cocaine. The fact that the items to do so were in the bedroom, is the most suspicious fact but given the other occupants of the apartment there could be a reason for that. As such I have a reasonable doubt and find that Mr. Burke is not guilty of Counts 9 and 10 but he is guilty of the included offence of possession of these drugs. As for Count #11, given my conclusion on Counts 9 and 10, I find that this count has not been proven.

Disposition

[149] Mr. Burke, would you please stand.

[150] For these reasons I find you guilty of Counts 6, 7 and 8 and 12 and 13 of the Indictment. I find you not guilty of Counts 9, 10 and 11 but find you guilty of the lesser but included offence to Count 9 of possession of oxycodone and guilty of the lesser but included offence to Count 10 of possession of cocaine.

SPIES J. Released: June 28, 2018 Edited Decision Released June 29, 2018

Footnotes:

[1] , [1991] 1 S.C.R. 742. [2] See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13. [3] See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). [4] R. v. J.H.S., supra at para. 9. [5] R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.) at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23. [6] R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (BCCA) at p. 155.