REASONS FOR JUDGMENT

[1] Ramadan Abdulkdi Aden ("Ramadan Aden") is charged with the following offences:

That he, on or about the 17th day of November, in the year 2014, at the City of Toronto, in the Province of Ontario, had in his possession, a controlled substance for the purpose of trafficking to wit: Cannabis, its preparations and derivatives, namely cannabis (marijuana), contrary to Section 5(2) of the Controlled Drugs and Substances Act;
That he, on or about the 17th day of November, in the year 2014, at the City of Toronto, in the Province of Ontario, had in his possession, a controlled substance for the purpose of trafficking, to wit: coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, namely cocaine, contrary to Section 5(2) of the Controlled Drugs and Substances Act;
That he, on or about the 17th day of November, in the year 2014, at the City of Toronto, in the Province of Ontario, without lawful excuse, stored a firearm, to wit: a .22 calibre Beretta handgun, in a careless manner, contrary to Section 86(1) of the Criminal Code;
That he, on or about the 17th day of November, in the year 2014, at the City of Toronto, in the Province of Ontario, without lawful excuse, stored ammunition, to wit: .22 calibre ammunition, in a careless manner, contrary to Section 86(1) of the Criminal Code;
That he, on or about the 17th day of November, in the year 2014, at the City of Toronto, in the Province of Ontario, without lawful excuse, possessed a prohibited firearm, to wit: a .22 calibre Beretta handgun, without being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to Section 91(1) of the Criminal Code;
That he, on or about the 17th day of November, in the year 2014, at the City of Toronto, in the Province of Ontario, without lawful excuse, possessed a prohibited firearm, to wit: a .22 calibre Beretta handgun, while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to Section 92(1) of the Criminal Code; and
That he, on or before November in the year 2014, at the City of Toronto, in the Province of Ontario, without lawful excuse, possessed a loaded prohibited firearm, to wit: a .22 calibre Beretta handgun, together with readily accessible ammunition capable of being discharged in the said firearm, at 39 Carr Street, Toronto, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to Section 95(1) of the Criminal Code.

[2] Ramadan Aden re-elected at the opening of trial to proceed without a jury. The Crown consented and the matter proceeded by judge alone.

[3] At the outset of the trial, Ramadan Aden brought an application to exclude the Crown witness, Ralph Dunn, from giving evidence about identifying Ramadan Aden being the person living at 39 Carr Street, unit 315. I concluded that while the circumstances gave rise to questioning the value of the identification, it was admissible and, as a result, the application was dismissed. I also made an order excluding witnesses. As will be noted below, neither party at this juncture anticipated or had under summons Ramadan Aden's mother, Amina Weheliye or his eldest sister, Haweya Aden who regularly attended in the courtroom between November 28 to December 4, 2017.

[4] During the cross-examination of the first defence witness, Ramadan Aden's youngest sister, Hivo Aden, on December 4, 2017, I heard submissions in the absence of the witness, Amina Weheliye and Haweya Aden that Hivo Aden's evidence about Ramadan Aden residing in the family home in Scarborough was in conflict with the sworn testimony given by Amina Weheliye and Haweya Aden at Ramadan Aden's bail hearing on November 20, 2014. The Crown expected and did in fact proceed to call these two witnesses in reply which was not opposed by Ramadan Aden. As a result, I ordered Amina Weheliye and Haweya Aden be excluded from the courtroom from early in Hivo Aden's cross-examination for the balance of her evidence.

Background

[5] The parties agreed to the following facts, marked as Exhibit 21:

a) Police seized a MacBook Pro computer from the living room of unit 315 at 39 Carr Street during the execution of the search warrant. Police analyzed this computer for fingerprints and discovered a fingerprint belonging to Shady Hegazy;

b) Police located a fingerprint belonging to Chung Din on a laptop computer seized during the execution of the search warrant of unit 315 at 39 Carr Street;

c) The alleged cocaine seized from unit 315 in the execution of the search warrant tested positive as cocaine;

d) The alleged marijuana seized in the execution of the search warrant tested positive as marijuana;

e) The handgun and ammunition seized from unit 315 in the execution of the search warrant tested positive as a firearm and ammunition;

f) The handgun seized from unit 315 in the execution of the search warrant is a prohibited weapon;

g) Ramadan Aden is not authorized to own a handgun;

h) Ramadan Aden concedes if the court finds he possessed all of the cocaine seized in the search of unit 315, then that cocaine was possessed for the purpose of trafficking;

i) Ramadan Aden concedes if the court finds he possessed all of the marijuana seized in the search of unit 315, that it was possessed for the purpose of trafficking;

j) Ramadan Aden concedes that if the court finds he possessed all of the marijuana seized in the hallway outside unit 315 during the execution of the warrant, then it was possessed for the purpose of trafficking.

[6] Ramadan Aden, born February 16, 1994, testified he grew up in the Alexandra Park Co-operative neighbourhood bordered by Dundas, Spadina, Queen and Bathurst Streets in Toronto. He resided at 135 Vanauley Walk with his mother and four siblings until the summer of 2012. His father generally worked in Somalia and would be with them for up to a month every few months.

[7] The family moved to a townhouse in the Kennedy Road and McNicoll Avenue area of Scarborough in the summer of 2012. This townhouse had multiple levels with his three sisters sharing the largest bedroom on the second floor. Ramadan Aden had his own bedroom on the third floor as did his mother and father. His younger brother had a bed in the area on the third level outside of the bedrooms, described as a secondary living area.

[8] Ramadan Aden was in conflict with his mother over continuing his education. He testified that he attended three different secondary schools in Toronto and one in Abu Dhabi without completing grade 12. He did a co-operative program which I understood from his evidence to be working at an elementary school in a support role to get some of the necessary secondary school credits. He had taken a year off from school at one point and was not enrolled or taking any courses as of the fall of 2014. Similarly, he had no employment in the fall of 2014. He understood his mother's position to be clear: if he was not in school, he was not welcome to live in the family home and was repeatedly told to leave. However, as his mother testified, she worked as a mobile home cleaner which was seasonal, lasting from spring to late fall. It involved a daily bus-subway-bus commute of more than one hour each way. With work hours of 8:00 am to 6:00 pm, she was out of the house from 6:00 am or shortly after to 8:00 pm or shortly before Monday to Friday. She also worked Saturdays when her employer was busy. As a result, on Ramadan Aden's version of events, it was not difficult to remain resident in the family home. This was the defence evidence from the youngest sister, Hivo Aden.

[9] To the contrary, Ramadan Aden admitted there were occasions, once per month when he returned to his long time prior neighbourhood to socialize, and this could involve staying at a friend's overnight. The alternative was to take an Uber or subway and bus back to Scarborough. He also admitted his key to the Scarborough townhouse was misplaced some months before he was arrested.

[10] Despite his 12 years growing up in the neighbourhood, the very social environment Ramadan Aden described which existed in the area, and living only a short distance away from 39 Carr Street, a three floor apartment building, he testified having never been in the building before November 17, 2014, except on one occasion. This was about three weeks before his arrest. He attended at unit 315 for the purpose of smoking marijuana. Smoking marijuana was something he admitted doing once or twice per week in the time prior to his arrest. He was admitted to the unit by knocking on the door and having it answered by Shady Hegazy on that occasion. This is a person he had met through a friend (whose name he cannot recall) and was a person he had known lived in the neighbourhood.

[11] Ramadan Aden was in the unit on that first occasion for about 40 minutes. He did not see any other drugs and did not go in the bedroom, the door to which was closed while he was there.

[12] With this background, on November 17, 2014 (which the Crown correctly submitted was a Monday) and not a Sunday as Ramadan Aden testified, he came from Scarborough to socialize and attended at a local bar-restaurant, Tortilla Flats, on Queen Street West at about 8:00 pm. This was after visiting a friend on Vanuley Walk. He attended Tortilla Flats to watch a basketball game. While there, he met Ahmed Omar whom he had known for about 10 years but socialized with only once or twice per month. They left at about 11:00 – 11:30 pm and proceeded to a Tim Hortons which was about a 10 minute walk away. While they waited in line, Ramadan Aden saw Chung Din enter. He had known Chung Din since grade 5 (or less than 10 years) and was a friend. They saw less of each other after Ramadan Aden moved to Scarborough in 2012.

[13] Ahmed Omar raised going to 39 Carr Street to smoke some marijuana he had. Chung Din was invited to join them. According to Ramadan Aden, Chung Din was also carrying a grocery size plastic bag (which turned out to be 438.11 grams or almost 1 pound of marijuana).

[14] When they arrived at the building, they gained access past the locked outer door (which required a fob or to be let in by a resident) as someone was exiting. They proceeded up the north stairwell to the third floor. As Ramadan Aden reached the door at unit 315, he was tackled by police coming from the opposite direction. He was searched and his cell phone and, $120.00 in cash, that his mother had given him, was confiscated. He agreed Chung Din and Ahmed Omar were also arrested.

[15] He was unaware Samir Ahmed and Ahmed Buralle were inside unit 315 until they were brought out by the police. He knew Samir Ahmed through a friendship with Samir Ahmed's older brother. He knew Ahmed Buralle from having lived on the same street. They were not friends.

[16] Ramadan Aden had no keys on his person that evening. He testified that the keys to the family's Scarborough townhouse which he had misplaced months earlier did not prevent him from getting into the family home as he would be let in by his youngest sister or security guard, regardless of the hour.

[17] Ramadan Aden denied the fob and keys marked as Exhibit 14 were his. He denied he resided at 39 Carr Street, unit 315. He denied that he used the alias, Saed Mohammad to sign the Long Term Guest Agreement on July 29, 2013 with Michael Hector, the registered tenant at unit 315 of the Alexandra Park Co-operative. He denied he had any additional information about who lived at this location. He denied knowledge of the variety of drugs, firearms and ammunition found in unit 315 by means of the search warrant.

[18] The police charged the three individuals in the hallway as well as the two inside the unit as a result of their search of the unit which found marijuana, crack cocaine, powdered cocaine, a loaded .22 calibre Beretta handgun and two almost full boxes of ammunition. In addition, they charged the original tenant, Michael Hector who had moved to Vancouver in early May, 2014. The charges against the five other than Ramadan Aden were subsequently withdrawn and all but Samir Ahmed testified for the Crown.

[19] Ahmed Buralle's evidence was noteworthy for being unable to recall details of how he ended up in the unit with Samir Ahmed before and when the police arrived. It was his first time in the unit. He did not know whose unit it was, the only illegal substances or objects he saw was marijuana (which he does not consider to be a drug), and he had never met Michael Hector. The keys with the fob attached seized by police (Exhibit 14) were not his. He was acquainted with Ramadan Aden, Chung Din and Ahmed Omar from living in the neighbourhood but did not see them that night until taken out of the apartment by the police. He also recognized Abdirezak Mohamed from the photo of his driver's licence found in the unit and seized by the police.

[20] Chung Din's evidence was similar. He met up with Ramadan Aden and Omar Ahmed at the Tim Hortons and was invited to go to 39 Carr Street to "hang out". This was his first time he had been to the unit. He did not have any keys on him and did not see Ramadan Aden pull out keys to the unit before being "ambushed" by the police. He was not acquainted with Samir Ahmed, Ahmed Buralle, Shady Hegazy or Abdirezak Mohamed. He had no explanation for why his fingerprints were found on a computer seized by the police from inside the unit. He could not remember or was not sure if he was carrying a plastic bag (with almost one pound of marijuana in it) that evening. He was unaware of any nicknames or street names for Ramadan Aden.

[21] Ahmed Omar confirmed meeting Ramadan Aden at Tortilla Flats along with other friends that evening. He left with Ramadan Aden to get a coffee at Tim Hortons after the basketball game finished. This is where they met Chung Din. He could not remember why they were going to 39 Carr Street, unit 315 until his memory was refreshed by his July, 2015 sworn declaration indicating he suggested they meet some other friends of his there, despite having never been there before or knowing who resided there. He could not recall how access to the building was gained. He was not familiar with the keys and fob seized by the police. The only nickname he was aware for Ramadan Aden was "Rams" and had never heard him referred to as Saed Mohammad. He was at the top of the stairwell right behind Ramadan Aden and Chung Din when the police arrested him. He was acquainted with Samir Ahmed and Ahmed Buralle who had lived in the area but did not expect to see them inside. He had no information about Chung Din or Ramadan Aden carrying a plastic grocery bag at the time of his arrest. He did recognize Shady Hegazy from a photograph (Exhibit 19) as a person from the neighbourhood as well as Michael Hector but had no information about where they lived. He did not recognize nor was he acquainted with Abdirezak Mohamed.

[22] Ralph Dunn was the maintenance project manager for the Alexandra Park Co-operative which meant he was responsible for routine maintenance and supervising renovations to the four buildings which form the co-operative and included 39 Carr Street. As a result, he regularly moved through the buildings and was familiar with many of its occupants. He worked at this position from 8:00 am to 4:00 pm, from Monday to Friday for over 20 years. He was familiar with the fob needed to open the lobby doors at 39 Carr Street and testified the one attached to the key chain marked as Exhibit 14 looked like the one in use at 39 Carr Street in November, 2014. The individual unit doors had a key lock and the key on the chain looked like the type required to lock or unlock units at 39 Carr Street. He was familiar with Michael Hector residing in unit 315 and that Saed Mohammad began sharing space with Michael Hector in the one bedroom unit in 2013. He regularly saw Saed Mohammad, recalling checking on a contractor that replaced the kitchen cabinets in the unit over a one week period in 2013. During this week, he observed Michael Hector sleeping in the living room and Saed Mohammad using the bedroom. He estimated Michael Hector left the unit about six months before the police raid.

[23] Regarding Ralph Dunn's ability to identify the person he knew as Saed Mohammad, in his examination-in-chief he pointed to Ramadan Aden sitting beside defence counsel. In cross-examination, when shown photographs of the six persons charged taken on or about November 18 (with the exception of Michael Hector), he was unable to specifically identify the photograph of Ramadan Aden as Saed Mohammad. He also testified being aware at the preliminary hearing he identified the photograph of Ahmed Buralle "looked like" or "could be" the person he knew as Saed Mohammad rather than the photograph of Ramadan Aden.

[24] Finally, it was Ralph Dunn that spotted the Canada Post Delivery Notice of December 3, 2014 (or Exhibit 4) on the door knob of the unit 315, likely on that date. He gave it to his manager, Judy McEwen, who in turn contacted and surrendered it to the police. The Notice advised Ramadan Abdulkadir Aden that the package attempted to be delivered that day was available for pick up at the Sun Wa Bookstore, 280 Spadina Avenue after 1:00 pm on December 4, 2014.

[25] Michael Hector confirmed sharing his unit for some time before July, 2013 with a person he knew to be Saed Mohammad and executing a Long Term Guest Agreement with him on July 29, 2013 (or Exhibit 10). Saed Mohammad used the bedroom and Michael Hector had his bed in the living room. By May, 2014, he had decided to move and work (as a social worker) in Vancouver and had agreed to let Saed Mohammad assume the entire unit by paying all the expenses. There was limited contact between the two of them after he moved to Vancouver.

[26] When advised of the events of November 17 to 18, 2014 in the apartment (and outside) he contacted Toronto Police Services. He returned to Toronto and selected the photograph of Ramadan Aden from a series of 12 photographs (Exhibit 18) shown to him. In cross-examination, Michael Hector initially had no memory or recognition of Shady Hegazy but when reminded of the circumstances -- Michael Hector's sister requested he put up a person who had split with his wife and needed a place in the area to be closer to his children -- agreed that person stayed with him for up to a month sometime before Saed Mohammad moved in.

[27] While Michael Hector recognized some of the furnishings from the police photos of the unit taken on November 18, 2014, he did not recognize and agreed it was unlikely he would have left either of the laptop computers found in the premises.

[28] The evidence of the police officers begins with Detective Constable David Westerhoff, who like the other officers that testified, was assigned to 14 Division and serving in the major crime unit in November, 2014. He was given a description for Ramadan Aden or "target one" and met with other officers in a public parking lot near 39 Carr Street at 11:55 pm for the purposes of organizing the execution of the search warrant for unit 315. He led the team up the southwest stairwell of the building of the third floor because he was assigned to breach the door to the unit. When he got to the third floor, there was a door and a ninety degree turn to his left to see the down the hallway with the door to unit 315 about one half of the way to the other end of the hallway where the other set of stairs to the building existed. The door to unit 315 was on his left or the west.

[29] As Officer Westerhoff looked around the corner, he observed Ramadan Aden at the door to unit 315. Chung Din was beside him and Ahmed Omar (or "target two") near the other stairway. Ramadan Aden had keys in one of his hands and that hand was near the handle of the door of unit 315. Officer Westerhoff proceeded immediately shouting "Police, Search Warrant" knocking down Ramadan Aden and Chung Din as he passed them to apprehend Ahmed Omar. He dropped the ram he was carrying to breach the door. He completed his arrest and search of Ahmed Omar finding a small amount of marijuana in Ahmed Omar's front jacket pocket. This was later weighed and found to be 1.28 grams. After transferring Ahmed Omar to a uniformed officer, he conducted the search of the living room area of unit 315 seizing a variety of items including a back pack containing marijuana, Samir Ahmed's wallet (from identification contained within it) and the driver's licence of Abdirezak Mohamed. He did not have any observations or recollection of seeing a plastic grocery bag on Ramadan Aden or Chung Din.

[30] Detective Constable Jorge Hurtado was second in line up the southwest stairs. After opening the door to the third floor hallway, Officer Westerhoff reacted to something, running forward, and Officer Hurtado followed. He observed Ramadan Aden facing west at the door to unit 315 while appearing to manipulate the door handle or lock and Chung Din behind Ramadan Aden with his hands at his side. Officer Hurtado used his body weight and one arm to put both Ramadan Aden and Chung Din to the ground, staying on top of Ramadan Aden with his body until another officer took control of Chung Din. Officer Westerhoff continued past the door but Officer Hurtado did not see why at that moment.

[31] When Chung Din was raised to his feet, a plastic grocery bag with two bags of marijuana weighing almost one pound was secured. A search of Ramadan Aden found $120.00 in cash and a Blackberry cellphone with a crack at its top on the front panel. He did not see any keys as he approached Ramadan Aden nor recall seizing any as a result of searching Ramadan Aden.

[32] Police Constable Michael Murphy was third in line up the southwest stairway. He acknowledged his view was partially obstructed by the officers in front of him but testified seeing Ramadan Aden facing the door of unit 315 with a key in one of his hands. Chung Din was behind Ramadan Aden and nearby. Officer Murphy was unaware if the key was found or tested in the lock to unit 315. Officer Murphy searched the bedroom and found the loaded .22 calibre Beretta handgun, one bullet on a TV stand shelf, a laptop computer and a small bag of marijuana among other items. The laptop had a fingerprint of that identified to be that of Shady Hegazy.

[33] Officer Murphy also re-attended Alexandra Park Co-operative on December 3, 2014 at 3:00 pm in response to contact by Judy McEwen, the Alexandra Park property manager. He was given the Canada Post Delivery Notice by her and was advised it was given to her by Ralph Dunn.

[34] Detective Constable Terrence Lazarus was in 39 Carr Street on the evening of November 17, 2014 but not in the procession of officers proceeding up the southwest stairway. Rather, he was going down the north stairway and observed Ramadan Aden, Chung Din and Ahmed Omar going up. Upon reversing his direction moments later, he observed Officer Westerhoff had Ahmed Omar in custody. Ramadam Aden and Chung Din were also in custody. He entered unit 315 as the exhibits officer and searched the kitchen. He was provided and located multiple bags of crack cocaine, a quantity of powdered cocaine, various quantities of marijuana, a scale and two boxes of .22 calibre bullets.

[35] Police Constable Ian Parker was the team leader in charge of executing the search warrant and organizing the team following the arrest of the five individuals, transporting them back to 14 Division and completing the search, the seizure and processing of items from unit 315. The debriefing occurred between 2:07 to 3:09 am at 14 Division and Officer Parker assumed the role of processing the property seized. This consisted of drugs, cash, the firearm and general property. For each piece of property processed, a receipt was created with a notation of either the full or partial badge number of the officer that could provide more information about it. For example, the keys and fob marked as Exhibit 14 had number 10565 on it indicating additional information would be available from Officer Hurtado. By comparison, the black case and grey weigh scale was marked with "53" which referenced Officer Lazarus.

[36] As reply evidence, the Crown called Ramadan Aden's eldest sister, Haweya Aden as a result of the evidence given by Hivo Aden that her brother, Ramadan, continued to reside and regularly sleep at the townhouse in Scarborough in the summer and fall of 2014. This conflicted with the evidence given by Haweya Aden's at her brother's bail hearing. Haweya Aden had testified her brother and mother were in conflict over his not attending school such that his mother would tell him not to come home. Her evidence on November 20, 2014 included that on some nights after he came home he "might be gone for a month" (see page 12 of the bail hearing transcript or Exhibit 22). She testified as well being told by Ramadan Aden he had stayed with friends. Further, she adopted her earlier evidence that the last time she was aware her brother actually stayed at the family home was "three months ago" (see page 14 of the bail hearing transcript). She believed it was for "one night". Further, she agreed her memory of events back then would have been better then rather than three years later at this trial. She also testified working at the same place and same hours as her mother at this time. This contributed to her not seeing her brother very often.

[37] Amina Weheliye explained her evidence at the bail hearing that "almost for the past one year he chose not to listen to me sometimes so he was living elsewhere" (see page 26 of the bail hearing transcript). She put more emphasis on his having to be told he was not welcome repeatedly. This meant there was ongoing contact between them. Further, his property such as his wardrobe was never removed from his bedroom in the Scarborough home.

Analysis

[38] Counsel and I agreed the correct approach is that set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The first part of the three part test is to address whether the evidence given by Ramadan Aden denying:

a) being Saed Mohammad;

b) residing at unit 315, 39 Carr Street;

c) having knowledge or possession of the drugs, handgun and ammunition inside unit 315; and

d) some of the drugs seized outside unit 315

as alleged is to be accepted. If accepted, he should be found not guilty

[39] I was not persuaded by his evidence, and do not accept his denial of involvement in what was found and seized by the police that evening. His evidence of denying residing at unit 315, 39 Carr Street as Saed Mohammad and being the sole occupant of that one bedroom apartment as of May, 2014, and thus aware of or legally in possession of the drugs, handgun and ammunition in that apartment is undermined by the following:

a) Michael Hector's identification of Ramadan Aden as Saed Mohammed from photographs;

b) Officers Westerhoff and Murphy's observations of Ramadan Aden with keys in his hands at the door of unit 315, 39 Carr Street immediately prior to his arrest;

c) unlike any of the others arrested at the scene, his admission of being in unit 315, 39 Carr Street on a previous occasion;

d) the evidence of his eldest sister of not having slept in the family home in Scarborough for about three months and that it was for one evening; and

e) the Canada Post Delivery Notice for Ramadan Aden being found on the door knob of unit 315 by Ralph Dunn on December 3, 2014.

[40] As a result, I do not believe or accept his evidence. Having have reached this conclusion, the next part to address whether a reasonable doubt has been raised based on Ramadan Aden's evidence. In my view, for the reasons just stated, I do not have a reasonable doubt. His evidence is neither credible nor does it raise a reasonable doubt. In saying that, I am totally mindful that the burden of proof is entirely upon the Crown to prove the commission of any of these offences beyond a reasonable doubt. There is no burden whatsoever on the accused at any time in this criminal case.

[41] Finally, I must address whether the Crown has satisfied its burden to prove each of the elements of the offences beyond a reasonable doubt. This involves a consideration of all of the evidence. Dealing first with Michael Hector's identification of Ramadan Aden as Saed Mohammad and thus the person who signed the Long Term Guest Agreement dated July 29, 2013, I heard submissions about the frailties of such evidence. The Court of Appeal has commented on the weight to be given to this type of identification in R. v. Izzard 1990 CanLII 13295 (ON CA), [1990] O.J. No. 189, particularly when the identification is in the courtroom or "in dock". To that extent, while the identification by Ralph Dunn supports that of Michael Hector, it cannot be relied on given Ralph Dunn's identification of the photograph of Ahmed Buralle as Saed Mohammad rather than the photograph of Ramadan Aden. In my view, in order to safely rely on the identification of Ramadan Aden as Saed Mohammad, some other credible supporting evidence was required.

[42] In this regard, there was the Canada Post Delivery Notice of December 3, 2014. However, as pointed out by defence counsel, the receipt of something by registered mail on December 3, 2014 was 17 days after the arrest of Ramadan Aden and cannot be relied on without additional evidence such as might have been available from Canada Post or Sun Wa Bookstore employees. This would likely have been evidence about when, what or how the item attempted to be delivered to Ramadan Aden at unit 315 of 39 Carr Street on December 3, 2014 came to that address with that name on it.

[43] Similarly, the absence of evidence linking the keys and fob marked as Exhibit 14 was problematic. Officer Parker's processing of the keys and fob would suggest it was Officer Hurtado that could or should have given evidence about seizing them from Ramadan Aden on the basis they were observed to be in one of Ramadan Aden's hands by Officers Westerhoff and Murphy. Officer Hurtado did not give such evidence. Further, while Ralph Dunn testified the fob looked like what is issued to tenants to open the lobby door at 39 Carr Street and one of the keys looked like the type used to open the door to a unit such as unit 315, there was no evidence that the fob and keys marked as Exhibit 14 actually did so.

[44] Regarding the inside of unit 315, there was evidence of fingerprints inside the unit. However, the fingerprints found were that of Shady Hegazy and Chung Din. There was no evidence of any fingerprints found that belonged to Ramadan Aden. This, in my view, undermined the Crown's position that Saed Mohammad was Ramadan Aden and had used or lived in unit 315 since July, 2013 and by himself since May, 2014. Further, there was no evidence about Shady Hegazy's involvement or presence in unit 315 of 39 Carr Street or elsewhere which could exclude him as living in the unit and thus support an inference Ramadan Aden resided in unit 315.

[45] Finally, the evidence included the driver's licence of Abdirezack Mohamed being found in unit 315. In the absence of any evidence explaining how that occurred or whether the address on the drivers licence was (in)accurate, it, at a minimum, gave a reason to being cautious about or concluding Ramadan Aden was the occupant or tenant of unit 315.

[46] Crown counsel acknowledged the evidence necessary to convict Ramadan Aden was circumstantial. Defence counsel relied on the decision of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 which reviewed the proper approach to assess circumstantial evidence in providing assistance to a jury as a trier of fact. The Court upheld the approach taken by the trial judge who advised the jury they must "be satisfied not only that the circumstantial evidence was consistent with guilt but rationally inconsistent with any other conclusion" (at paragraph 13). In this decision, Justice Cromwell reviews the relationship between proof by circumstantial evidence and the requirement of proof beyond a reasonable doubt. He states "the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty" (at paragraph 38).

Conclusion

[47] As a result, after long and careful thought, I must conclude that the Crown has not discharged its burden of Ramadan Aden was the individual residing in unit 315 at 39 Carr Street as of November 17, 2014. If he cannot be proven beyond a reasonable doubt to be the individual residing in the unit at the time the search warrant was executed, the offences arising from the drugs, gun and ammunition found inside the unit must not result in the finding of guilt. Applying the requisite legal test, Ramadan Aden must be and is found not guilty of counts 2, 3, 4, 5, 6 and 7.

[48] The remaining, count 1, relates to the marijuana found outside the unit excluding the 1.28 grams found by Officer Westerhoff from his search of Ahmed Omar. That is, the almost 1 pound of marijuana contained in two sealed bags in the grocery bag seized from the floor outside unit 315 when Chung Din and Ramadan Aden were brought to their feet by Officer Hurtado and a colleague. To recap the evidence, Ramadan Aden denied the bag was his and testified Chung Din had it from when he first saw him at Tim Hortons. The police officers had no recollection of it as part of their observations of Ramadan Aden, Chung Din and Ahmed Omar in the hallway until Chung Din was raised to his feet. Chung Din, in my view, conveniently and doubtfully, could not remember or be sure if he was carrying a plastic bag with him at the time of his arrest.

[49] The quality of the evidence does not satisfy me that what the Crown alleges occurred did so occur beyond a reasonable doubt. Again, applying the requisite legal test, I must find Ramadan Aden not guilty of count 1 as well.

Mr. Justice G. Dow

Released: January 30, 2018

COURT FILE NO.: CR-16-90000328-0000

DATE: 20180130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RAMADAN ABDULKDI ADEN

REASONS FOR JUDGMENT

Mr. Justice G. Dow

Released: January 30, 2018

R. v. Aden, 2018 ONSC 667

Case Summary

REASONS FOR JUDGMENT

Background

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 4