COURT FILE NO.: YC-17-50000002-0000 DATE: 2018-10-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.G. and M.R. (Young Persons)

Counsel: Elizabeth Nadeau and Glenn Brotherston, for the Crown (Applicant) Doug Holt, for T.G. Rachel Lichtman, for M.R. (Defendants/Responding Parties)

HEARD: June 5, 6, 7, 12, 13, 14, 15, and 19, 2018

BEFORE: MOLLOY J.

REASONS FOR DECISION

A. INTRODUCTION

[1] T.G. and M.R. are young persons within the meaning of the Youth Criminal Justice Act.[^1] They are jointly charged with having kidnapped M.C., while using a firearm, with intent to hold him for ransom (Count 1 on the indictment). Both young persons before me elected to be tried by a judge without a jury. The offence is alleged to have occurred between April 19 and April 21, 2016. The victim of the kidnapping (M.C.) turned 17 on April 19, 2016. Although T.G. and M.R. are now adults, because of their ages at the time of the offence, they were tried before me sitting as a Youth Court judge. Three other individuals allegedly involved in the kidnapping were charged as adults and their trials in the Superior Court of Justice are still pending.

[2] T.G. is also charged with: possession of heroin for the purposes of trafficking (Count 4 on the indictment); possession of cocaine for the purposes of trafficking (Count 5); possession of marijuana for the purposes of trafficking (Count 6); and possession of $1900.00 knowing it to be the proceeds of crime (Count 7). All of those charges stem from items seized by the police at the time of T.G.’s arrest on the kidnapping charge.

[3] M.R. is also charged, under a separate indictment, with breaching the terms of two sentences imposed by the Youth Court of Justice: one sentence from a judge in Brampton issued on December 8, 2015, and one from a judge in Cold Lake, Alberta issued on July 22, 2015. With respect to each sentence, there are two alleged breaches: (1) failing to keep the peace and be of good behavior; and, (2) being in possession of a firearm.

[4] There is no question that the kidnapping occurred. Ultimately, M.C.’s mother paid a ransom and her son was freed. The central issue in the case before me is the identity of the kidnappers, and specifically the involvement of T.G. and M.R. There is also an issue as to whether a firearm was used in the kidnapping and both accused are also separately charged with possession of a firearm (Counts 2 and 3 on the indictment). Although not the subject of a separate count on the indictment, the Crown alleges that the kidnappers forced M.C. to engage in sexual acts with another young man against his will and video-taped those acts. This is relevant to M.C.’s motivation to cooperate with the police and, therefore, relevant to the reliability of the information provided – both of which will be discussed later in these reasons. Also, if true, this would be an aggravating factor on sentencing and would be required to be proven beyond a reasonable doubt.[^2]

[5] Initially, M.C. was cooperative with the police, including providing them with a lengthy and detailed video statement at the police station within hours of being released from captivity. However, by the time of trial, M.C. was no longer cooperative, to say the least. He refused to answer any relevant questions – claiming, falsely, to have forgotten everything. It is clear that M.C. was held for several days in several locations. There is video footage of his captors moving him between these various points. The captors were in touch with members of M.C.’s family, and there are cell phone records and wiretap evidence of some of those contacts. There is also considerable forensic evidence tying various of the accused persons to various places and things. However, the evidence of M.C. provides the only direct evidence as to what happened during the kidnapping, and without it, the Crown cannot prove its case against either of the accused.

[6] The Crown sought to have the video statement given by M.C. to the police on April 21, 2016 admitted at trial for its truth. The evidence on that application and on the trial proper proceeded on a blended basis. After hearing argument on the application, I issued a ruling, indicating that written reasons would follow. I ruled that the statement of M.C. was admissible for its truth with respect to the following:

(i) that M.C. was kidnapped;

(ii) that a firearm was used in furtherance of the kidnapping;

(iii) the identity of T.G. as one of the kidnappers and the role he played; and

(iv) the identity of a second kidnapper as a 17-year-old kid from Driftwood who used to go to Canada’s Wonderland with K.P., and the role that kidnapper played.

[7] However, I further ruled that the statement was not admissible for the truth of M.C.’s allegations of forced sexual acts.

[8] Following those rulings, I heard argument on the substantive charges before me, at the conclusion of which I reserved my decision.

[9] I am satisfied beyond a reasonable doubt that T.G. was an active participant in the kidnapping, that a firearm was used in furtherance of that kidnapping, and that T.G. was himself in possession of a firearm in the course of those events. I am likewise satisfied that he had full knowledge and control of the items found in the apartment when he was arrested and that the cash found was proceeds of crime. It is clear that the drugs were in his possession for the purposes of trafficking. Accordingly, I find T.G. guilty on Counts 1, 2, 4, 5, 6, and 7.

[10] With respect to M.R., the only real issue is identity. I am satisfied that one of the kidnappers was a 17-year-old kid who was said to be from Driftwood. However, I cannot be satisfied beyond a reasonable doubt that M.R. is that person. All of the charges against him are therefore dismissed.

[11] My detailed reasons for these decisions, as well as the admissibility of the video, follow.

B. BACKGROUND FACTS

[12] M.C.’s grandmother was a witness at trial. She testified that she suspected on the morning of April 20, 2016 that something unusual was going on, based on the way her daughter (M.C.’s mother) and some of M.C.’s younger siblings were behaving – running around, fidgeting, and constantly checking their phones. However, she left for work that day before finding out what was at the root of this behaviour.

[13] Meanwhile, unbeknownst to M.C.’s grandmother, M.C.’s mother (“K.C.”) had received information about M.C. being held prisoner from another son (M.C.’s older brother), who was living in Alberta. The older brother has a criminal record that includes drug dealing and firearm convictions. He had prior connections to at least some of the males who were holding M.C., and had been sent a picture of M.C. tied to a chair. He called his mother at about 6:00 a.m. on the morning of April 20, 2016 and told her that M.C. had been kidnapped. Later, he called her again and told her that ransom demands were being made. She did not call the police. Instead, she started driving around and walking in the Queen’s Drive area of Toronto searching for friends or associates of her two sons and trying to get information about what had happened to M.C. She testified that some of the young people she questioned had seen pictures on social media of M.C. tied to a chair and bleeding. Several of them showed her such pictures on their phones.

[14] When M.C.’s grandmother returned home after work that afternoon, one of the younger kids, frantic with worry, told her that pictures were circulating in social media showing M.C. tied up and being held in somebody’s basement. The grandmother immediately called the police, who began an investigation. K.C. had not returned home by the time M.C.’s grandmother heard about the kidnapping and called the police. Initially, K.C. was angry that the police had been called, but after being questioned by the police, she agreed to cooperate. The police obtained judicial authorizations to intercept calls on her phone and the phone of M.C.’s older brother in Alberta. Their discussions and negotiations with the kidnappers were recorded. Upon the instructions of the kidnappers, K.C. sent part of the ransom money electronically, all of the particulars of which were provided to the police. On April 21, 2016 a police surveillance team watched as K.C. delivered the remaining installment of the ransom payment to the kidnappers and the kidnappers turned over M.C. to his mother. Unfortunately, the surveillance team following the kidnappers’car lost the vehicle and the kidnappers escaped.

[15] Subsequently, the police went with M.C. and his mother to the hospital, where he was treated as an in-patient for his injuries. At that time, the police also arrested M.C. for outstanding unrelated robbery charges and breach of his bail conditions. While awaiting treatment, M.C. went with the police and pointed out one of the locations where he had been held captive. After being released from hospital, he was taken to the police station, where he provided a lengthy video-taped statement in relation to the kidnapping.

C. CONTENT OF M.C.’S STATEMENT TO POLICE

[16] M.C.’s statement to the police started at 11:00 p.m. on the night of Thursday, April 21, 2016, and continued for approximately three hours. It was audio and video recorded. M.C. was not under oath. However, he was told about the importance of telling the truth and warned that a failure to do so could lead to criminal charges against him, including public mischief, obstruction of justice, and fabricating evidence. Although M.C. was in custody with respect to the charges against him, the officers taking the statement told him that their role had nothing to do with those charges and that they were interviewing him solely as a victim of a crime, specifically kidnapping. M.C. voluntarily agreed to provide the statement. He spoke to a lawyer for legal advice prior to doing so.

The Front St. Condo

[17] M.C. told the police that on April 18, 2016, which was the day before his birthday, he met up with a friend named K.P., whom he had known since they were both babies. He said K.P. was on the run, hiding out from police because of some outstanding charges, and living with a man named Ranski. He gave a detailed physical description of both K.P. and Ranski and said that Ranski was a well-known rap artist. He showed the officers a video on YouTube of Ranski performing, pointing out Ranski as well as K.P. (who was a background dancer). He told them that Ranski lived with his mother in a townhouse on Swansea.

[18] M.C. stated that on April 18, 2016, he went with Ranski and K.P. to a condominium on Front St. across from the CN Tower and near a Tim Horton’s. There was a party at the condo. He gave a detailed description of the building and its location, but did not know the street address. He said the apartment they were in was rented and was on an upper floor, such as 23 or 24. They stayed the night of the 18th and through to the 19th along with a group of other people.

[19] M.C. told the police that he was from an area of Toronto known as Queen’s Drive. He said that he was the only one at the party who was from Queen’s Drive; the other males at the party being from either “the Jungle” or “Driftwood.” M.C. told the police that, in addition to him, the group partying in the apartment on the night of April 19, 2016 consisted of: his friend K.P.; Ranski, who he said was associated with Driftwood; a 17-year old Driftwood kid (who is alleged to be the accused M.R.); a guy he knew as P who he said was from the Jungle (alleged to be the accused T.G.); another guy from the Jungle who was older and more heavy set and who was planning to leave for a two-week trip to Jamaica; a third guy from the Jungle who he identified on a rap video as “Pressa”; and, three or four girls. Thus, there were five men in addition to M.C. and K.P. – three connected to the Jungle and two to Driftwood. M.C. said that P was the one who had rented the condo and that P had also provided a bottle of expensive champagne because it was M.C.’s birthday. M.C. also said that P knew his older brother. According to M.C., all five of these men had handguns with them at the apartment.

[20] M.C. told the police that starting around 10:00 p.m., some guys from Queen’s Drive started trying to contact him by calling and texting him on K.P.’s cellphone. He said those Queen’s Drive guys had a disagreement with some of the other guys at the party and were not happy that M.C. was associating with them. They asked M.C. to give them the location of the apartment, but M.C. maintained that he refused to do so. However, he said he believed K.P. may have given the location of the building to them. Eventually, P intervened due to the frequent activity on the phone. He spoke with the Queen’s Drive guy, who apparently summoned them to come out, calling them “bitches” if they would not come out and engage with them. M.C. said that the five guys left the apartment to go and confront the Queen’s Drive guys, leaving the girls, M.C. and K.P. in the apartment.

[21] Shortly afterwards, M.C. heard gunshots in the building. He said that after the shots, one of the Driftwood guys (not M.R.) came back to the apartment and left the building with M.C., K.P. and the girls who had been at the party, taking the elevator to the lobby and then exiting the building to Front St. They looked for a taxi. He said at first the Driftwood guy got into a taxi with the girls, leaving him and K.P. on the sidewalk, but that after M.C. complained about being stranded there without money, the Driftwood man kicked the girls out of the cab, and M.C. and K.P. got in. All three of them took the cab to Ranski’s family’s home at 31 Swansea. M.C. believed the other four men (including P, Ranski and the 17-year-old Driftwood guy) departed in a car they had parked in the basement of the Front St. building. They also ended up at 31 Swansea.

31 Swansea

[22] M.C. told the police that he, K.P. and the Driftwood guy arrived at 31 Swansea at about 4:15 a.m. and that Ranski and the others were already there. M.C. gave the police a very detailed description of the physical layout of 31 Swansea, including that there had been a fire in the kitchen. He said that after he arrived at Swansea, the Driftwood and Jungle guys started accusing him of setting them up to be shot at by the Queen’s Drive guys. He told the police that he was upstairs at first, but then was taken to Ranski’s bedroom in the basement. He described being tied up and beaten. He said that Pressa gun-butted him in the head, causing him to bleed extensively. He also said that Pressa had been there when he arrived, but that he left, came back again and then left again.

[23] M.C. said that about ten minutes after they arrived at Swansea, one of the girls who had been with them at the Front St. apartment arrived in a cab. He described her as being on drugs and “out of it.” He said she had no money to pay for the cab and that a police officer came to the door with her. He said Ranski gave the officer money for the cab fare. The girl then came into the house and passed out.

[24] According to M.C.’s statement to the police, K.P. was not beaten at Swansea because Ranski was protective of him. Because the group had previously known K.P., they blamed M.C. for the shooting, accusing him of setting them up. M.C. did describe, however, that while in the basement of Ranski’s house, the 17-year-old Driftwood guy (alleged by the Crown to be M.R.) played Russian Roulette with a revolver held close to K.P.’s head. He said that after five tries, there was one shot, which went right past K.P.’s head. M.C. said that Ranski was angry about there being a gunshot in his house and told the group they had to leave. At that point, they had been at Ranski’s house for about two to three hours.

[25] M.C. reported that he and K.P. were taken to the parking garage by everyone in the group except Ranski. Their hands were tied. He said Ranski stayed behind to clean up. They were put into the backseat of a white car, which he described as being a 2016 Ford rental vehicle with tinted windows. P was driving, and according to M.C., was always the one who drove the car. Nobody sat in the front passenger seat. The Jungle guy sat beside the door in the backseat behind the driver, and the 17-year-old Driftwood kid sat on the rear passenger side by the door. M.C. and K.P. sat in the middle. He said the two other guys in the back seat had their guns beside them. He told police that P took main roads to get to the Jungle and parked in a parking lot beside a small three-storey building there.

The First Jungle Apartment

[26] M.C. told the police he was taken to two different apartments in the Jungle. The first one, to which they went directly after leaving Swansea, was on the second floor of a small building that had three floors. He described the owner of the building as being a “crackhead” and said she was a white woman who was short and skinny and old (which he elaborated as meaning maybe in her forties).

[27] M.C. told the police that he and K.P. were tied up while they were in this apartment, both their hands and feet. M.C. described being beaten by his captors over the period they were there, two to three hours. He said both P (alleged to be the accused T.G.) and the Driftwood kid (alleged to be the accused M.R.) displayed their guns in this apartment. He said that P was hitting and kicking him and making repeated references to the fact that he knew his older brother. P was slapping him in the face and punching him, using his bare hands. Ultimately, the group moved M.C. and K.P. out of that apartment because the woman who lived there threatened to call the police if they did not leave.

The Second Jungle Apartment

[28] The second apartment in the Jungle was also on the second floor of a similar building to the first one. M.C. said that a male “crackhead” lived in that apartment. He said that man was deaf. M.C. told the police that shortly after they arrived there, two Jungle guys, who were twin brothers, came in. He said they brought marijuana with them. He said at this apartment, he and K.P. were still tied up. He also said that although their captors sometimes slapped K.P. in the face, the worst of the physical abuse was against him.

[29] When asked if the kidnappers fed him, M.C. reported that they had ordered three pizzas at the second Jungle apartment. He said the pizza was from Domino’s and that there were two with a barbecue sauce base and ground beef, and one with chicken and extra cheese.

[30] M.C. said that it was from the second apartment that his captors started making phone calls to his brother. He said they threatened to kill him if they weren’t paid. At first they wanted $50,000, then they went to $30,000, then $20,000, and finally $10,000. They sent a picture to his brother in which they were threatening to cut off his finger with scissors. M.C. said they took a lot of pictures. In addition to the twins that came while they were there, P’s older brother also came for a while, along with another guy. M.C. said this guy took a wooden dolphin off the wall and beat him with it until it broke. He said his ribs were still hurting from that assault. He said he was only released when his brother arranged payment of $3,000, which he said was only part of the $10,000 ransom.

The Final $7,000, Sexual Assault, and Blackmail

[31] M.C. told the police that he still had to pay $7,000 to his kidnappers and that they were blackmailing him to ensure he paid. He was very evasive about exactly what the kidnappers were holding over his head. He said they had a videotape on a phone of “K.P. doing some gay shit to me.” He said that P and the Driftwood kid pointed guns at him and K.P. to force them to perform these acts. He refused to provide any further particulars of what was on the video and appeared to be quite anxious when pressed for more information. He said the video was recorded in the first Jungle apartment in which he was being held. He told the officers that he had been trying to get in touch with “Condo” to try to work out something with him. “Condo” is the nickname of a police officer who works in the community to assist gang members to get away from that lifestyle. M.C. proposed that the police put up the remaining $7,000 ransom and then follow the car that came to get the money and seize the cell phone with the video on it. He said that P had two Samsung Galaxy cell phones and that the video was on one of them. He said the video would ruin his life and the police needed to get it before his captors did “anything dumb.” He was afraid they would put the video on social media where everybody would see it.

[32] After being pressed for details and being told that such details would be required to lay charges for sexual assault, M.C. said he did not want them charged.

Identification of P and Recantation

[33] Towards the end of the three-hour interview, the police officers showed M.C. a photo line-up, which contained a picture of the accused T.G. At photo #4 in the array, M.C. recognized a person who he said was a friend of his, but who was not involved in any way. He identified photo #8 as P, and was clear that was him. He was asked to hold that photo up to the camera so that there was a record of the person he identified. At that point, he balked and said he did not want to be seen as a rat. He then said he did not know the individual in the picture and that it was not P. He said he would not go to a trial and identify anyone as a kidnapper. He refused to answer any more questions or to cooperate any further with the police.

D. TEST FOR ADMISSIBILITY OF STATEMENT

[34] There is no issue between the parties as to the test to be applied in determining the admissibility of M.C.’s statement to the police. The statement is hearsay and presumptively inadmissible, with the onus on the Crown, on the balance of probabilities, to show that its admission into evidence is justified on the basis of necessity and reliability.[^3] The concern at this stage is not the truth or ultimate reliability of the statement, but rather whether it meets the threshold for admitting it into evidence at all.[^4] I must also be satisfied that the probative value of the statement outweighs its prejudicial effect.[^5]

[35] In the case before me, the necessity component of the test is met because M.C. refuses to testify.[^6] The real issue is reliability.

[36] There are two aspects of reliability: accuracy and truthfulness.[^7] Because there is a video and audio recording of M.C.’s statement to police, there is no issue as to what he actually said. The question is whether he accurately recalled and reported what happened and whether he told the truth about it.

[37] All counsel rely upon the recent Supreme Court of Canada decision in R. v. Bradshaw,[^8] which is directly on point. In that case, the Supreme Court, relying on its earlier decisions in Khelawon and Youvarajah,[^9] held that at the threshold stage of deciding whether to admit hearsay evidence, reliability is established either by showing that there are adequate substitutes for testing truth and accuracy (procedural reliability) or sufficient circumstantial and evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Procedural reliability involves the examination of substitutes for the usual manner of testing a witness’ evidence in court by live cross-examination in front of the trier of fact. Relevant factors include: whether the statement was video-taped; whether the witness was under oath; and whether the witness was warned of the consequences of lying. Substantive reliability requires an examination of the circumstances in which the statement was given and any evidence that either corroborates or conflicts with the truth and accuracy of the statement.[^10]

[38] The central issue in Bradshaw is the use of corroborative evidence to establish substantive reliability at the threshold stage, which is also the central issue before me. The Court cautioned against conflating the threshold test for admissibility and the issue of ultimate reliability on the trial itself. However, in assessing the impact of corroborative evidence on admissibility, the standard is a high one. The Court drew a distinction between the use of corroborative evidence in considering the reliability of an unsavoury witness who testified at trial and was cross-examined, as compared to hearsay evidence of a witness who has not been cross-examined before the trier of fact. In the former situation, corroboration of material particulars given by the unsavoury witness may be taken into account, but they do not need to relate to the very issues at the heart of the trial implicating the accused. However, when looking at corroboration of a hearsay statement, the corroborative evidence must relate to the specific danger relating to the hearsay evidence and the purpose for which that evidence is tendered.[^11] Corroborative evidence can only be relied upon in this situation “if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.”[^12]

[39] Karakatsanis J., writing for the majority, elaborated on the test as follows (at paras. 45 and 47):

First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement (see Couture, at paras. 83-84; Blackman, at para. 57). Hearsay is tendered for the truth of its contents and corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on. Because threshold reliability is about admissibility of evidence, the focus must be on the aspect of the statement that is tendered for its truth. The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove.

Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. When assessing the admissibility of hearsay evidence, “the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility” (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon, at para. 107; Smith, at p. 937). Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement (see U. (F.J.), at para. 40). Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.

[Emphasis added; footnotes omitted.]

[40] The Supreme Court in Bradshaw set out a step by step process for trial judges to follow in determining substantive threshold reliability, as follows (at para. 57):

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should

1. identify the material aspects of the hearsay statement that are tendered for their truth;

2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[41] Having determined the principles that apply, I now turn to the application of those principles to the admissibility of M.C.’s statement in this case.

E. ANALYSIS: ADMISSIBILITY OF STATEMENT

(1) The Material Aspects of the Statement Tendered for their Truth

[42] M.C.’s hearsay statement is relied upon by the Crown to establish the following:

(i) that M.C. was kidnapped for ransom;

(ii) that a firearm was used in the course of accomplishing the kidnapping;

(iii) that M.C. was forced by his kidnappers to engage in sexual acts with K.P., which were video-taped and used to ensure his compliance;

(iv) the identification of T.G. as one of the kidnappers, and his role in the kidnapping; and,

(v) the identification of the “Driftwood kid” as one of the kidnappers, and his role in the kidnapping.

[43] Counsel for T.G. conceded that M.C. had been kidnapped and also conceded that M.C.’s statement was admissible for the purposes of identifying T.G. as one of the kidnappers – the person named as “P” in M.C.’s statement to the police. However, the defence contested the admissibility of the statement with respect to the use of firearms and the role of T.G. in the kidnapping, and in particular M.C.’s statement about the “gay stuff.”

[44] Counsel for M.R. challenged the admissibility of the statement in its entirety. Alternatively, she argued that the statement was not admissible to identify M.R., to establish the use of a firearm in the kidnapping, or to establish the truth of the allegations of forced sexual acts.

(2) The Specific Hearsay Dangers Raised

[45] Although the primary focus of the defence was the truthfulness of M.C.’s statement, issues with respect to accuracy were also raised, and I have considered both aspects of reliability.

[46] With respect to accuracy, it is important to note that M.C. provided his statement at 11:00 p.m. on Thursday, April 21, 2016 and continued for three hours. He had just prior to this been released from hospital, where he was treated in the Emergency Department. He was on medication for pain. According to his statement, his kidnapping started in the early morning hours of April 20, 2016, and he had little or no sleep during the days or nights of April 19, 20, and 21. Further, what he described was a period of intense trauma, during which he was assaulted, tied up, and moved from place to place. Although he could fairly be described as more street-wise than the average teenager, it must also be recognized that he had just barely turned 17 at the time of these events.

[47] The most significant hearsay danger is truthfulness. Despite his youth, M.C. had already had significant interactions with the justice system and was immersed in a criminal gang culture. He had a youth record which included three robberies and other more minor offences. He was on bail at the time of the kidnapping and had deliberately breached the conditions of his bail. There was already an outstanding warrant for his arrest at the time of his kidnapping, and he was taken into custody in relation to those charges when released by the kidnappers.

[48] In the course of giving his statement, M.C. made no mention that he was carrying a firearm himself that night. However, it is apparent from the wiretap intercepts that M.C. was likely carrying a firearm and it was taken from him by his captors. Although this is an omission, rather than an outright lie, it was untruthful and affects his credibility.

[49] Finally, towards the end of his interview with the police, M.C. recanted everything he had said and claimed he had not been telling the truth.

[50] In short, M.C. was an unsavoury witness with a history of dishonesty and if he had testified at trial would likely have been the subject of a Vetrovec caution.

(3) Procedural Reliability

[51] M.C. gave his statement to the police voluntarily, after receiving legal advice from his lawyer. He was not under oath. However, he was aware of the importance of telling the truth and the consequences of lying, which in my view were more fundamental to his likelihood to tell the truth than an oath would have been. The quality of both the audio and visual recording are good and permit some assessment of credibility. The statement was close in time to the events described. On many occasions, M.C. corrected the officers when they misunderstood what he was saying.

[52] That said, M.C. ceased cooperating towards the end of his statement, and refused to testify both at the preliminary hearing and at trial. There was no opportunity for contemporaneous cross-examination, nor was there any form of cross-examination thereafter. The Crown did not seek to rely on procedural safeguards alone to support the admissibility of the statement. In my view, the procedural circumstances under which the statement was taken do not provide any substitute for cross-examination.

[53] The admissibility of the statement therefore depends upon whether the Crown has established the statement’s substantive reliability.

(4) Accuracy

[54] The real concern about the reliability of M.C.’s statement is with respect to his truthfulness, rather than his ability to recall details. The statement was given close in proximity to M.C.’s release, when his memory of the events would still be fresh in his mind. Obviously, he had been through some trauma and must have been sleep-deprived. However, it is clear from his demeanour and the level of detail he provided that his mind was fully alert and operating clearly. He had been given some medication for pain at the hospital, but not of a sufficient nature or quantity to interfere with his reasoning processes.

[55] There was substantial independent corroboration of many of the details provided by M.C., sufficient to establish that his memory was detailed and accurate. For example, his descriptions of the apartment on Front St., 31 Swansea, the second apartment in the Jungle and the car that transported him were precise and confirmed by physical evidence. Likewise, his physical descriptions of his captors, their comings and goings, and who was with him at what times are confirmed by video surveillance, as are the times and dates of his movements. The details of the arrival at Swansea of the woman who was “out of it” and who did not have cab fare were verified by independent evidence. M.C. even correctly recalled in precise detail the toppings on the pizzas delivered to the second Jungle location where he was held. The accuracy of his memory is impressive.

[56] More importantly, the aspects of the statement relied upon by the Crown (e.g. the fact that a kidnapping occurred, the use of a firearm, the identity of the kidnappers) are not dependent on an accurate memory for details. These are facts that would be remembered, but might not be truthfully reported. For that reason, my primary focus has been on whether M.C. was telling the truth about these matters. If M.C. was being truthful, I have no concerns about accuracy.

(5) Substantive Reliability: The Kidnapping

[57] Intercepted telephone communications, surveillance, and bank records establish that persons claiming to have kidnapped M.C. made contact with his brother and his mother, demanded payment, and received payment, following which M.C. was released. When this is combined with the video surveillance seized from the Front St. apartment, the 31 Swansea townhouse, and the second Jungle apartment, the evidence supporting the truth of the kidnapping is overwhelming.

[58] The only alternative explanation I can come up with is that the whole scheme was a hoax and M.C. was complicit in it. However, that is pure conjecture. There is not a shred of evidence to support that proposition and all of the evidence is inconsistent with it. It is apparent throughout the interview, until close to the very end, that M.C. wanted to assist the police to capture the people who kidnapped him. He had no prior connection to T.G. or M.R. and no reason to want to implicate them in the offence if they were innocent. He was hoping to have the police offer to pay the remaining $7,000 and thereby catch the perpetrators. Given that he was then in custody on other charges and had been in breach of his bail (so unlikely to be released), he knew he would likely be unable to raise the money himself. He gave extensive details about the locations in which he had been captive, including accompanying the police to the Jungle and identifying the actual apartment where he had been held just prior to his release. M.C. also had physical injuries consistent with having been beaten and burned with heated knives. He said that at the second Jungle location, he was beaten with a wooden dolphin until it broke. When that apartment was searched, police found a wooden wall decoration that would appear to be a swordfish (arguably similar to a dolphin), with a portion of the sword broken off. None of this evidence is remotely consistent with M.C. being involved in a hoax to stage his own kidnapping.

[59] In my view, this purely speculative alternate explanation cannot possibly be true. The only possible logical conclusion from the evidence is that M.C. was telling the truth to the police about being kidnapped. Cross-examination of M.C. on that point could not possibly yield anything to rebut this explanation. Accordingly, the statement is admissible for the proof of that fact.

(6) Substantive Reliability: Use of Firearms

[60] In my view, there is no logical explanation for the kidnappers being able to restrain and hold M.C. over the period of time in question without at least the threat of a weapon. M.C. said that there were five firearms in the Front St. apartment at the time of the party and that his kidnappers used firearms to both threaten and assault him over the course of the kidnapping. There is substantial evidence corroborating that.

[61] There can be no question that at least some of the attendees at the Front St. party had handguns. A number of them left the apartment to confront the group from Queen’s Drive. Shots were definitely fired in the public hallway of the building near the elevator. Based on the description of the building provided by M.C., the police were able to identify the apartment building and the unit the group had occupied. Video surveillance tapes seized from the building show M.C. was there and that he left in exactly the manner he described. Forensic examination also resulted in finding bullets and casings in the public hallway near the elevator. Further, one video-tape from the elevator itself shows an unidentified person aiming a gun into the elevator occupied by two of the men identified by M.C. (subsequently identified by police as Ranski and Rowe), and shooting at them. Both Ranski and Rowe react defensively. A handgun can be seen clearly in Ranski’s hand as he dives for the floor, and Rowe also appears to be reaching for a weapon inside his coat, although the weapon itself is not seen.

[62] The telephone intercepts confirm that the kidnappers had seized a gun from M.C. and were not giving it back.

[63] M.C.’s mother testified that on the day after the kidnapping, when she was walking around Queen’s Drive looking for information about her son, she encountered Ranski. She said that he was wearing her son’s jacket and she could see a handgun in his pocket.

[64] The video of the group preparing to transport M.C. and K.P. from Swansea to the Jungle is also compelling. At one point, K.P. makes a break for it. His attempted escape is verified by an independent witness who saw him and who called the police to report what he had seen. However, suddenly, once the kidnappers saw he had attempted to flee, he halted his flight and returned meekly to his captors. In my view, the only reasonable inference is that he was threatened. Given his distance from the others and his proximity to the open exit door from the garage, the only reasonable conclusion is that the threat was a weapon that could operate from that distance – i.e. a firearm.

(7) Substantive Reliability: T.G. as a Party and the Role He Played

[65] The position of the Crown is that the accused T.G. is the person M.C. described to the police as P. In my view, this conclusion is amply corroborated by physical evidence.

[66] M.C. provided a physical description of P, which matches the physical characteristics of the person in the surveillance videos wearing tan pants and red shoes. The movements of that person on the various videos coincide with what M.C. told the police about the movements of P.

[67] M.C. was shown a photo-lineup and without hesitation pointed to the photograph of the accused T.G. as being P.

[68] M.C. said that P was present at the Front St. apartment. Physical evidence confirms that T.G. was present in the apartment at some point. His fingerprints were found on several items located there. M.C. said that P left two cell phones behind when they hurriedly left the Front St. apartment after the shooting. At the time of T.G.’s arrest, a cell phone was seized, the contents of which are clearly traceable to him. Records for that phone show that it was T.G. who rented the apartment (Unit 2509), which was being operated as an Airbnb. There are entries on T.G.’s phone confirming that he used the name “Julien Adam Antowuan.” There is also evidence that he used that name to rent the apartment for four days. The arrangements were made on his phone. When the police located the apartment based on the information provided by M.C. and searched it, one of the items found was an envelope from the owner of the suite, showing the guest name for Unit 2509 as “Jullian Adam Antowuan.” Subsequently, days after the kidnapping, T.G. sent an email to the owner of the suite asking if he had left two cell phones behind, and complaining that he was required to pay the full rental fee because he ended up only staying there for one night. Thus, the corroborating evidence places T.G. in that apartment for the time that M.C. said he was there.

[69] M.C. told the police that P was always the driver of the rented white Ford in which he was transported by the kidnappers. The car was located by police. It is a white Ford Fusion, and can be seen clearly in surveillance videos. It was also under police surveillance when M.C. was delivered back to his mother after payment of the ransom money. The car was rented to a person who provided the name “Julien Adam Antowuan” and the arrangements for payment were traced to T.G.’s cell phone. T.G.’s palm prints were found in two locations on the left front exterior of the car, consistent with him being the driver of the car.

[70] T.G.’s fingerprints were also located on items at the second Jungle apartment where M.C. had been held.

[71] M.C. told the police that the ransom negotiations were between his brother and P, and that P knew his brother from before. The intercepted telephone conversations confirm this to be the case. The receipt of the ransom money is also tied directly to T.G. through the evidence of his girlfriend at the time. At T.G.’s request, she facilitated the delivery into her personal bank account of $2,000 sent by e-transfer by M.C.’s mother, and then withdrew $2,000 in cash from her account and gave it to T.G.

[72] Thus, there is reliable physical evidence confirming T.G.’s participation in the kidnapping, including his presence in two locations where M.C. was held and being the driver of the car in which M.C. was transported. There is also independent evidence that T.G. arranged for and directly received $2,000 of the ransom payment. This corroborative evidence is directly related to the purpose for which it is tendered – to show that T.G. was involved in the kidnapping. Given the nature of the corroboration, I can see no way that the conclusion that T.G. was a party to the kidnapping could be dislodged by cross-examination of M.C.

[73] The defence argues that there are inconsistencies in M.C.’s statement indicating that he was minimizing his own role in what happened. I accept this to be the case. It is quite likely that M.C. had a firearm, which he failed to disclose to the police. At one point he told the police he did not know the names of the Queen’s Drive guys, although he later admitted that he knew who they were but did not want to tell the police. There is also some discrepancy as to how much cash he may have had on him on the night of April 19. As I noted at the outset, I recognize that there are issues with respect to M.C.’s character and his credibility on some points. However, I do not find these points to be relevant to the key issues for which the statement is tendered. In particular, on the issue of the identity of M.C., there is substantial corroboration and nothing to undermine the truthfulness of M.C.’s statement on this point. Cross-examination would add nothing to this issue.

[74] Accordingly, I find that M.C.’s statement is admissible for its truth with respect to the involvement of T.G. in the kidnapping.

(8) Substantive Reliability: The Alleged Sexual Assault

[75] It was only towards the end of his statement that M.C. told the police he had been forced by his captors to engage in sexual acts with K.P. and that the kidnappers had recorded this on video. M.C.’s purpose in revealing this to the police appears to be in ensuring recovery of the cell phone upon which this had been recorded. He seemed to be genuinely distressed about this video being released on social media.

[76] I ruled that the statement was not admissible to prove that the sexual assault had occurred. Quite apart from the absence of any corroboration of this particular aspect of M.C.’s ordeal, I am concerned about the lack of particularity in the allegations made by M.C. Notwithstanding the persistence of the police in trying to get more information from M.C., all he would say was that his captors had them at gunpoint and made them do “gay stuff.” The range of conduct covered by such a vague term is simply too vast to simply admit it into evidence without cross-examination.

(9) Substantive Reliability: The Involvement of the Driftwood Kid in the Kidnapping

[77] M.C. did not actually identify M.R. as one of his kidnappers. The theory of the Crown is that M.R. is the kidnapper referred to by M.C. as the Driftwood kid. The information given by M.C. is sufficient to identify which of the individuals shown on the various video surveillance tapes is the person he knew as the Driftwood kid. The surveillance tapes provide corroboration of the involvement of this person as a party to the kidnapping. It is not necessary to define the precise role played by this person in every aspect of the kidnapping in order to fix him with responsibility for the offence. Further, it is not necessary to actually put a gun in his hand for him to be a party to kidnapping for ransom while using a firearm. He was part of the group that used firearms in the course of carrying out the offence. That is sufficient to make him a party to the offence as charged. Again, cross-examination of M.C. on this aspect of his statement would make no difference, nor do I see any other possible logical explanation for the evidence. Accordingly, I find that there is sufficient corroborative evidence of M.C.’s statements about the Driftwood kid’s involvement in the kidnapping to make this evidence admissible for its truth.

[78] The Crown relies on fingerprint evidence to establish the link between the person identified as the Driftwood kid and the accused M.R. His fingerprints were identified on items found at the Front St. apartment and the second apartment in the Jungle, as well as on the exterior of the white Ford Focus in which M.C. was transported. If M.C. had identified M.R. as the person he knew to be the Driftwood kid, the fingerprint evidence could be considered as corroborative of that fact. However, M.C. did not provide any information as to the true identity of the Driftwood kid. Therefore, I do not see this evidence as being relevant to the issue of threshold reliability. It becomes relevant only on the issue of the identity of the person shown in the video, which is an issue for the ultimate trier of fact.

[79] The Crown also relies on the evidence of M.R.’s mother. She testified that M.R. had lived on Driftwood from the time he was a baby until 2014, and continued to associate with his friends from there. This evidence has some relevance to the identity issue and could be considered as corroboration of M.C.’s identification of the person involved as being from Driftwood. I will deal with this issue in my analysis of the guilt or innocence of M.R. on the substantive charges.

[80] Accordingly, I found the statement of M.C. as to the involvement of the Driftwood kid in the kidnapping, and the role he played, to be admissible for its truth.

F. ULTIMATE ISSUE: M.R.’S INVOLVEMENT IN THE KIDNAPPING

[81] I turn now to consider whether I am satisfied beyond a reasonable doubt that M.R. is the 17-year-old Driftwood kid identified by M.C. as one of his kidnappers.

[82] M.R.’s mother testified at trial. She said that her son was born on December 20, 1998. At the time of trial, he was 19. At the time of the kidnapping in April 2016, he was 17. M.R.’s mother testified that she and her son resided in North Toronto, and had lived in that location since 2014. However, she said that M.R. lived at 415 Driftwood from the time he was six months old until they moved in 2014, and that even after they moved he still associated with friends from Driftwood. Given M.R.’s connection to Driftwood and his age, it is possible he is the person referred to by M.C. as the Driftwood kid. However, this is not sufficient to make a positive identification; it merely means that M.R. cannot be eliminated as the Driftwood kid.

[83] M.R.’s physical size and description are similar to that of the person M.C. referred to as the Driftwood kid. However, none of the video images of this person are sufficiently clear to permit an identification. The person on the video could be M.R., but that is as far as I can go.

[84] M.C. did not identify M.R. in any photo-lineup or YouTube video. He did not know his real name. Indeed, he did not even personally know his age or that he was from Driftwood. He was relying on his associates and what others said about him to identify him as such.

[85] M.C. told the police that the Driftwood kid used to go to Canada’s Wonderland with K.P., a fact that was also confirmed by comments made on the intercepted telephone calls with M.C.’s brother. However, there is no evidence that M.R. and K.P. used to go to Canada’s Wonderland together, so this piece of information does nothing to connect M.R. to the Driftwood kid.

[86] M.R.’s fingerprints were found in the following locations:

(a) on some bottles in the Front St. apartment;

(b) on a water bottle found in the garbage can at the second Jungle apartment; and,

(c) in two locations on the exterior rear passenger side of the car in which M.C. was transported.

[87] Clearly, without the fingerprints there is insufficient evidence from which I could conclude that M.R. and the Driftwood kid are the same person. The question is whether the fingerprint evidence is sufficiently compelling to support a finding of guilt.

[88] There are some weaknesses in this evidence. M.R.’s fingerprints are on transportable items found at the two apartments, but not on any of the permanent aspects of the apartments, such as furniture, doors, and the like. It is therefore possible that these items had been touched by M.R. at some point and then brought to the location by someone else. The location of M.R.’s fingerprints in the rear passenger area of the car is a more tangible connection. M.C. testified that this was the area of the car where the Driftwood kid was sitting. I do not accept the argument of defence counsel that the location of the prints is inconsistent with M.C.’s evidence because they were not found on the door handle. This is merely an absence of prints in a particular location, which proves nothing. M.R.’s prints were in the rear passenger area, which I find to be consistent with where the prints of the Driftwood kid could have been left, given M.C.’s account of where the Driftwood kid was in relation to the car.

[89] However, the fact that M.R. was in this location at some point in time does not mean he was there at the time of the kidnapping. There were many unidentified fingerprints found on the car that could have belonged to the Driftwood kid. It is possible M.R. was an acquaintance of T.G. and that he was in the car on another earlier or later occasion. Further, if he was a friend of T.G.’s, it is also possible that he handled items that were later carried by others to the party at the Front St. location and the second Jungle apartment.

[90] Thus, there is no direct evidence identifying M.R. as the Driftwood kid and therefore linking him to the kidnapping. Each of the fingerprints found is capable of another rational inference other than that M.R. was present for the kidnapping. The question is whether the combination of the location of M.R.’s fingerprints in all three locations, along with his age and connection to Driftwood, is sufficiently compelling to rule out a mere coincidence. This has been a close call for me. On a balance of probabilities standard of proof, I might well have reached a different conclusion. However, I cannot be satisfied beyond a reasonable doubt that M.R. is the Driftwood kid.

[91] Accordingly, I find M.R. not guilty on the main charge of kidnapping. The other charges flow from the kidnapping and the same result follows. All of the charges against M.R. are dismissed.

G. ULTIMATE ISSUE: T.G.’S INVOLVEMENT IN THE KIDNAPPING

[92] I am satisfied beyond a reasonable doubt that M.C. was kidnapped and held captive over a period of days by a group of men, and ultimately released only after his mother paid ransom to his captors. I have reviewed the corroborative evidence with respect to that in my reasons with respect to the admissibility of M.C.’s statement, and will not repeat it in detail here. I note, in particular, the video footage from surveillance cameras at Swansea and the second Jungle apartment which show M.C. being moved from place to place by his captors, just as he described. Also, the intercepted telephone calls between the person known to M.C. as “P” and M.C.’s brother clearly show that M.C. was being held for ransom. The banking records and police surveillance establish that the ransom was paid. M.C. was beaten and burned with hot knives by his captors, as described by him, and as demonstrated by his medical records. The suggestion that M.C. was complicit in his own kidnapping is ridiculous.

[93] I am also satisfied beyond a reasonable doubt that the accused T.G. was one of the kidnappers and that he is the individual referred to as “P” in M.C.’s statement to the police. When showed a photo line-up, M.C. selected the photograph of T.G. without hesitation. There is no evidence of any history between M.C. and T.G. which would cause M.C. to falsely accuse him of being one of the kidnappers. M.C.’s identification of T.G. is corroborated by substantial independent evidence including the following:

(a) T.G.’s fingerprints on items found at the Front St. apartment;

(b) documentation and telephone records indicating that T.G. was involved in renting the apartment through Airbnb;

(c) documentation indicating that T.G. rented the white Ford in which M.C. was transported by his kidnappers;

(d) T.G.’s fingerprints on the car in the vicinity of the front driver’s side, consistent with his described role as the driver;

(e) a receipt proving that the car was parked at the Front St. location at the time in question;

(f) T.G.’s fingerprints at the second Jungle apartment where M.C. was held; and,

(g) documents and wiretap interceptions showing that T.G. arranged for the payment of the ransom and received the cash that he directed be funneled through his girlfriend’s bank account.

[94] Indeed, the evidence against T.G. is overwhelming. I have no hesitation finding as a fact that he was the driver of the car on the various occasions when M.C. was moved, including the last occasion when the final amount of ransom was paid and M.C. was released. Further, he was the person who negotiated the payment of the ransom on the phone with M.C.’s brother. He was present at every location where M.C. was held and was a key actor in the kidnapping.

[95] I am satisfied beyond a reasonable doubt that firearms were used to facilitate the kidnapping and that T.G. was fully aware of this fact. As I have stated above, there is corroborative evidence supporting M.C.’s statement as to the use of firearms. I rely on that evidence, and video footage from the surveillance cameras in the Front St. apartment elevator and the Swansea parking garage in which some of the kidnappers are moving in a manner that suggests there is a gun under their clothing, and on the common sense inference that guns were present before the kidnapping and were likely to have been used thereafter. However, the most powerful piece of evidence on this point is the statement of M.C. to the police. I find M.C.’s evidence on this point to be truthful and I accept his evidence that he was threatened with firearms on numerous occasions and had a gun held on him at many points to ensure his compliance.

[96] The defence pointed to a number of frailties and concerns with respect to M.C.’s evidence. I recognize that M.C. is an unsavoury witness and that he lied, or at least failed to tell the full truth, about some of his own conduct. As with any witness, it is open to me to accept some, none, or all of his evidence. I do not accept all of his evidence. It was probably M.C.’s cell phone that the Queen’s Drive guys were calling before they arrived at the Front St. location, rather than K.P.’s phone as M.C. reported to the police. The kidnappers were able to send photographs of M.C., tied up and bleeding, to various people who knew M.C., which suggests that they were able to get their contact information from M.C.’s phone. It may also have been M.C., rather than K.P., who gave the Queen’s Drive guys the location of the Front St. apartment. M.C. may well have lied to the police about those details in order to distance himself from the suggestion that he had set up a shooting.

[97] I am also satisfied that M.C. omitted a key fact when telling the police about the guns in the apartment. It is apparent from the discussions between M.C.’s brother and P that M.C. himself had a gun, a fact that he failed to reveal to the police. Again, the likely reason for not disclosing that detail is obvious. However, the fact that M.C. had a firearm which was taken away from him by his captors is another indication that yet another firearm was used against him in the course of his being held captive. That is what I take from the telephone conversations between P (T.G.) and M.C.’s brother. P said they had taken the gun and that they would not be giving it back.

[98] The defence argued that M.C. exaggerated his injuries and the medication he was given at the hospital. I do not agree. M.C. had been through a traumatic experience in which he must have been in fear for his life. He had actual injuries and blood on his clothing. The language he used to describe those injuries was not, in my view, excessive in these circumstances. He said he had been given five pills. He did not seem to know what they were. In fact, he had been given five pills – three Tylenol and two Ibuprofen. Again, given the circumstances, I do not find his description of this to undermine his credibility on the salient issues.

[99] M.C. told the police that in the course of the Driftwood kid playing Russian Roulette at the Swansea address, the firearm he was using discharged. The defence argued that the failure of the police to locate evidence of the shot being fired was evidence that this did not happen. I disagree. The officer conducting the search did not specifically look for a bullet hole, assuming there ever had been one. It would be possible for the gun to discharge without leaving a visible bullet hole (if, for example, it went into furniture, or an area of the floor that was then covered over). M.C. told the police that Ranski had stayed behind at Swansea to clean the place up. When the police conducted their search at that location, it did appear to have been recently cleaned. It could well be the case that evidence of the gunshot was covered up at that time. The absence of the bullet hole is just that – absence of evidence; it does not mean that the gunshot did not happen as described.

[100] Accordingly, while I recognize the obvious credibility issues in relation to M.C., I believe his evidence that his captors used guns at various points during the kidnapping. Further, I believe his account that the two captors in the backseat of the car with him and K.P. had guns, with which they threatened their victims. T.G. was an active participant throughout this process. Even if he did not himself have a firearm, he was a party to the use of firearms by others. The firearms used were in the joint possession of the kidnappers (including T.G.) and were used to assist them in carrying out their crime.

[101] I am satisfied beyond a reasonable doubt that T.G. participated in a kidnapping for ransom involving the use of a firearm. I therefore find him guilty under Count 1 on the indictment (kidnapping) and Count 2 (possession of the firearm).

H. OTHER CHARGES AGAINST T.G.

[102] T.G. was arrested on May 4, 2016 when police entered Apartment 1509 at 33 Singer Court to execute a search warrant. Although T.G. was not a tenant of that apartment, he was alone there at the time the police entered. In open view in the kitchen area, the police found: a quantity of drugs; $1,900 in cash; a number of cell phones, one of which was plugged into a charger and clearly belonged to T.G.; and some drug paraphernalia. As a result, T.G. was charged with: possession of heroin for the purposes of trafficking (Count 4); possession of cocaine for the purposes of trafficking (Count 5); possession of marijuana for the purposes of trafficking (Count 6); and, possession of proceeds of crime (Count 7).

[103] The Crown decided not to proceed with the marijuana count.

[104] The police had received information that T.G. would be at Apartment 1509 at 33 Singer Court. On May 4, 2016, while the supporting material for a warrant was being prepared, several officers conducted surveillance of the exterior of the building. P.C. Janeczko testified that he was in a parked car looking at the building through binoculars. At approximately 8:07 p.m., he saw a male on the balcony at about the 13th floor on the southwest corner of the building. He was wearing a black zip-up top with a white shirt underneath. He was smoking, singing, and pointing to a stack of money he had in one hand. The officer had this male under surveillance for approximately half an hour and saw him go back and forth between the balcony and the interior of the apartment a number of times.

[105] The Emergency Task Force and other officers arrived at 9:15 p.m., and the ETF forced open the apartment door. T.G. was the only person in the apartment. He was placed under arrest and removed from the apartment. He was wearing a black hoodie with a white tee shirt under it, matching the description of the clothing worn by the male on the balcony observed by P.C. Janeczko, although it must be noted that these are very common items of clothing. He was not wearing any shoes and asked if he could retrieve his shoes from the apartment, which request was denied.

[106] Police officers searched the entire apartment. There was marijuana, cocaine, and heroin on the kitchen counter, along with digital scales and small baggies suitable for street-level drug packaging. Two cell phones were plugged into chargers on the counter, one of which belonged to T.G. and the other being of uncertain ownership as it could not be unlocked. There was a stack of money on the counter – $1,900 in $20 bills. Significantly, there were no drugs or any other items connected to drug dealing anywhere else in the apartment. A pair of men’s shoes was found on the floor in the kitchen in the vicinity of the counter.

[107] T.G. did not live in the apartment. Two other men lived there. One of those tenants, Kerry Alexander, testified at trial. I found him to be a credible and reliable witness. Mr. Alexander had only been living at the apartment for one month prior to the execution of the search warrant on May 4, 2016. He was employed full-time and worked twelve-hour days, typically from 9:00 a.m. to 9:00 p.m. He said he had been kicked out of an apartment he shared with his girlfriend and his employer, Tadeo Bennet, told him he had a room in an apartment at 33 Singer Court he could sublet to him. It was the smaller of the two bedrooms in Unit 1509. The master bedroom was occupied by a person known to Mr. Alexander as Jowayne. This person was not T.G., and Mr. Alexander testified that he had never seen T.G. before May 4, 2016. He did not know if Jowayne had a job. Mr. Alexander testified that one key fob was required to enter the 15th floor hallway, and another key fob to enter the apartment itself. He had two key fobs, as did Jowayne. He was not aware of anyone else having key fobs to the apartment.

[108] On the morning of May 4, 2016, Mr. Alexander said he was late leaving for work as he was having allergy symptoms. He said he left at about 11:00 a.m. and accepted a ride to work from Jowayne. He testified, and I accept, that none of the drugs nor drug-related items were on the kitchen counter at the time he left. He did not return until after 9:00 p.m., while the police search of the apartment was already underway. Upon arrival, he immediately identified himself to police as a tenant in the apartment.

[109] Mr. Alexander also testified that he had never seen drugs, large quantities of cash or digital scales in the apartment before. I believe him. He said he had a cordial relationship with Jowayne, but that he rarely spent any time with him and did not know any of his friends. They were merely roommates and knew little about each other.

[110] I am fully satisfied that Mr. Alexander had no connection to the drugs, and no connection to T.G. Further, I am satisfied that he had no knowledge that either the drugs or T.G. would be in the apartment that day. It is possible on the evidence before me that the drugs were connected to Jowayne and that T.G. was in the apartment with the permission of Jowayne. It is also possible that T.G. had independent access to the apartment, although I note that he was not in possession of any keys to the unit or building, nor were any such keys found in the apartment. It is therefore more likely that T.G. obtained access to the apartment through Jowayne or somebody else who had keys.

[111] Regardless of the ownership of the drugs and how T.G. got into the apartment, the point is that he was there with large quantities of drugs and cash in plain view. He clearly had knowledge that the drugs and cash were there; they could not be missed by even a casual observer. He was alone. He had full opportunity to do anything he wished with these items. He was in control of them. Although the precise length of his stay in the apartment cannot be ascertained, it was far longer than a fleeting presence and ample time to establish both knowledge and control.

[112] I therefore conclude that T.G. was in possession of the drugs and the cash. I am satisfied of that fact beyond a reasonable doubt.

[113] The next question is whether the cocaine and heroin were possessed for the purpose of trafficking.

[114] The heroin was laced with fentanyl, a common but lethal additive. The combined weight of the heroin/fentanyl was 9.5 grams, with a street value of between $1,710 and $2,850, depending on the volume trafficked at any given time. This amount of heroin is not consistent with possession for personal use, but rather indicative of trafficking.

[115] The crack cocaine weighed 7.85 grams. If sold at the street level at the usual $20 individual purchase price, the total value would be $1,560. If sold at the gram level, the value would be between $640 and $800. This amount of crack cocaine is not consistent with possession for personal use, but rather indicative of trafficking.

[116] Based solely on the quantity of drugs involved, there is a strong inference that they were possessed for the purposes of trafficking. The expert opinion to that effect (Exhibit 55) was essentially unchallenged. However, there was additional information before me to strengthen that inference, in particular, the presence of the packaging material and the digital scale in proximity to the drugs. It is also relevant that both crack cocaine and heroin were found together, another factor suggesting trafficking rather than personal use. In all of these circumstances, I am satisfied beyond a reasonable doubt that T.G. was in possession of the drugs for the purposes of trafficking.

[117] I therefore find T.G. guilty of possession of drugs for the purposes of trafficking, as charged in Counts 4 and 5 on the indictment.

[118] The final count to be dealt with is Count 7 – possession of proceeds of crime. On the evening of May 4, 2016, P.C. Janeczko saw a young man wearing a black sweater over a white tee shirt on the balcony waving around a stack of money. A little over half an hour later, T.G. was found alone in the apartment, wearing a black sweater over a white tee shirt, and $1,900 in cash was sitting in plain view on the kitchen counter. There is a strong inference that T.G. was the male on the balcony, that those were his shoes on the floor and that the cash on the counter was also his. T.G. was clearly engaged in a criminal lifestyle, as evidence in part by his participation in the kidnapping. The extent of that lifestyle is also apparent from many of the messages recovered from his phone. He had multiple cell phones and refers in messages on one of them to switching up his numbers frequently. He made several references to his fondness for “Henny,” an expensive cognac, which was one of the bottles found in the apartment on Front St. He was in the habit of renting cars and also renting condominiums in downtown Toronto for extended periods of time at the cost of $140 to $200 a night. Over the preceding months since February 2016, he had been spending up to $4,000 a month on such luxuries. He was 17 years old.

[119] There is an overwhelming inference that this cash on the counter did not come from a legitimate source, but rather represented proceeds of crime. There is no evidence whatsoever to the contrary and no evidence of T.G. having any legitimate source of income. In the whole of the circumstances, I am satisfied beyond a reasonable doubt that the $1,900 on the counter was in T.G.’s possession and that he knew that some or all of it had been obtained illegally through the commission of a serious offence. I therefore find him guilty of possession of proceeds of crime as charged in Count 7 of the indictment.

I. CONCLUSION

[120] All charges against M.R. are dismissed (Counts 1 and 3 on the main indictment and all counts on the additional indictment relating to breach of court orders).

[121] I find T.G. guilty under: Count 1 (kidnapping while using a firearm); Count 2 (possession of a restricted firearm); Count 4 (possession of heroin for the purposes of trafficking); Count 5 (possession of cocaine for the purposes of trafficking); and, Count 7 (possession of proceeds of crime).

[122] Count 6 (relating to the marijuana) is stayed at the request of the Crown.

MOLLOY J.

Released: October 11, 2018

[^1]: S.C. 2002, c. 1. [^2]: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at pp. 414-417. [^3]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47 [Khelawon]. [^4]: Ibid, at para. 50. [^5]: Ibid, at para. 49. [^6]: Ibid, at para. 78, citing R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740. [^7]: Ibid, at paras. 62-63. [^8]: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 [Bradshaw]. [^9]: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720. [^10]: Bradshaw, at paras. 26-32. [^11]: Ibid, at paras. 33-56. [^12]: Ibid, at para. 44.