Court File and Parties
Court File No.: CR-18-90000128-0000 Date: 2019-06-10 Ontario Superior Court of Justice
Between: Her Majesty The Queen -and- Talel Khan
Counsel: Helena Solin and Ira Glasner, for the Public Prosecution Service Jeff Berman, for the Defendant
Heard: March 25-28, April 1, May 24, 2019
Justice: J. Copeland
Reasons on Applications and for Judgment
[1] Talel Khan was charged with one count of possession of fentanyl for the purpose of trafficking, and possession of property obtained by crime. The offences charged relate to approximately 290 grams of fentanyl, and $3,880.00 found in the search of a home pursuant to a warrant based on a tip from a confidential informant. As I will outline below, the home was occupied by Mr. Khan and his common law spouse, Shauna Belford. Mr. Khan was the target of the search warrant. The validity of the warrant was not challenged.
[2] There were two applications concerning admissibility of evidence. The Prosecution sought a ruling that a statement given by Mr. Khan to Detective Constable Fraser was voluntary. The Defence took the position that the statement was not voluntary. In addition, the Defence brought an application to exclude the items seized and the statement, on the basis that Mr. Khan’s s. 10(b) rights were breached. The s. 10(b) claim was based on two alleged breaches – delay in implementation of Mr. Khan’s right to counsel after he said he wanted to speak to a lawyer, and the elicitation of a statement from Mr. Khan by Detective Fraser, after Mr. Khan had repeatedly asked to speak to a lawyer but before he was given the opportunity to do so.
[3] The trial proceeded as a blended trial and voir dire on the applications, with the understanding that I would rule on the applications prior to Mr. Khan being called on to decide whether to call a defence.
[4] On March 8, 2019, I gave an oral ruling on the voluntariness and Charter applications, with reasons to follow. My ruling was as follows:
- I am satisfied beyond a reasonable doubt that Mr. Khan’s statement to Detective Fraser was voluntary.
- I find that Mr. Khan’s s. 10(b) rights were violated.
- I exclude from evidence the statement elicited from Mr. Khan by Detective Fraser after Mr. Khan had requested to speak to counsel but before he was given the opportunity to speak to counsel. I do not exclude any of the physical evidence, in particular the fentanyl, the scale, and the money seized.
[5] I proceeded to hear the rest of the evidence, subject to the exclusion of the statement. Mr. Khan led no evidence on either the voir dire or the trial.
[6] On May 24, 2019, I gave my decision on the trial, with reasons to follow. My decision was as follows:
- The Prosecution case rests on circumstantial evidence to prove constructive possession by Mr. Khan of both the money and the drugs.
- In order to prove Mr. Khan guilty of either or both of the offences, the Prosecution must prove beyond a reasonable doubt that he was in possession of the drugs and/or the money either alone, or jointly with Ms Belford, the other occupant of the home.
- I am not satisfied beyond a reasonable doubt that the Prosecution case proves that Mr. Khan was in possession of the drugs and/or the money either alone, or jointly with Ms Belford. I am not satisfied that either of these inferences are the only reasonable inferences available on the evidence.
- A third reasonable inference which is available on the record before me is that Ms Belford was in sole possession of the drugs and/or the money. I do not suggest that this inference is more probable than the inferences that Mr. Khan was in sole possession, or that he was in joint possession with Ms Belford. But the inference that Ms Belford was in sole possession is a reasonable inference on the record before me, and is not speculative.
- I am left with a reasonable doubt on both counts. I find Mr. Khan not guilty of both counts.
[7] These are my written reasons for my decisions on the pre-trial applications and the trial.
The Applications
[8] The basic facts of events that form the basis of the voluntariness and Charter applications are not significantly in dispute. I will outline them, and then address further detail in the course of my analysis.
[9] In the early morning hours of December 20, 2016, the police executed a search warrant at Mr. Khan’s apartment on Blossom Crescent. The apartment was in a house which was divided into two apartments. The evidence supports that Mr. Khan and his common law spouse, Shauna Belford, live in the basement unit. [1] The search warrant was based on information from a confidential informant. Mr. Khan was the target of the search warrant.
[10] The Emergency Task Force (the “ETF”) entered first to secure the unit. This was at 2:57 a.m. When the ETF entered, Ms Belford was in the bed in a makeshift second bedroom set up in the living room. Mr. Khan was in the area of the same bed. The ETF handcuffed Mr. Khan. Ms Belford was not placed in handcuffs, as she was 8 months pregnant. It is an agreed fact that there was no conduct by the ETF that raises Charter concerns, and no threats or inducements by them.
[11] At 3:05 a.m., the ETF turned the residence over to officers from the Toronto Drug Squad [2].
[12] Detective Rajan Bhogal took over custody of Mr. Khan from the ETF at approximately 3:05 a.m. Detective Bhogal seated Mr. Khan in the kitchen of the apartment. Mr. Khan remained cuffed. Detective Bhogal advised Mr. Khan of the reason for his arrest, which was possession of a schedule I substance for the purpose of trafficking. Detective Bhogal was not sure the exact time he did this, but said it was almost immediately after the drug squad entered the home.
[13] Detective Bhogal also read Mr. Khan his right to counsel at that time (soon after 3:05 a.m.). He asked Mr. Khan if he understood the right. Mr. Khan responded, “yeah”. Detective Bhogal asked Mr. Khan if he had a lawyer. Mr. Khan responded, “yeah”. In cross-examination, Detective Bhogal also agreed that Mr. Khan said he wanted to speak to a lawyer. Detective Bhogal was asked what he did when Mr. Khan said he wanted to speak to a lawyer. He testified that whenever a detainee wants to speak to a lawyer, he tells them that as soon as they are the police station, they will be put in contact with a lawyer right away. Detective Bhogal then read Mr. Khan the caution. Detective Bhogal stayed with Mr. Khan. He did not participate in the search.
[14] Detective Fraser testified that at this time he knew Mr. Khan was in custody and handcuffed. However, he said he did not know at the time that Mr. Khan had said he wanted to speak to a lawyer. Detective Fraser agreed in cross-examination that he took no steps to have Mr. Khan transported to 31 Division at 3:20 a.m.
[15] The drug squad officers conducted the search beginning at approximately 3:20 a.m. While the search was conducted, the officers kept Mr. Khan sitting on a chair in the kitchen area of the apartment, handcuffed. Ms Belford was detained (but not arrested or handcuffed), in the area of the bedroom where she had been found. Both Mr. Khan and Ms Belford were compliant with police, and neither was intoxicated.
[16] During the search, several items of evidentiary value were found. Detective Constable Greaves found $3,500.00 in cash in a clothing organizer in the closet of the bedroom that was furnished for a baby (not the same bedroom that Mr. Khan and Ms Belford were in when the ETF entered).
[17] Detective Josh Berry found $380.00 in the right front pocket of a North Face jacket on a chair in the kitchen.
[18] Detective Fraser found a digital scale inside the apartment near the front entranceway. He did not say exactly where this item was found, but he said it took him “well over an hour” to search the front entranceway and the storage room.
[19] After searching the front entranceway and storage area, Detective Fraser searched a shed in the backyard. The backyard and shed were accessible from the unit by a sliding door in the living room that had been converted to a bedroom. The door of the shed was closed, but not locked. In the shed, Detective Fraser found a ziploc bag containing a white powdery substance. The bag was located inside a bag for a folding lawn chair that was hanging in the shed. The packaging was that inside the outer Ziploc bag, were two Ziploc bags, each containing a white powdery substance. When later sent for testing by Health Canada, the substance was found to contain an analogue of fentanyl. The first bag contained 167.97 grams of the substance. The second bag contained 123.55 grams of the substance.
[20] When Detective Fraser found the bag with the white substance in the shed, he went back into the home. It was approximately 5:20 a.m. at this point, over two hours after Mr. Khan was initially detained and placed under arrest. Detective Fraser testified that he initially believed the powdery substance to be cocaine.
[21] Detective Fraser read Mr. Khan his rights to counsel. He told Mr. Khan that he was under arrest for possession of a controlled substance for the purpose of trafficking. I note that this was the second time Mr. Khan had been given the right to counsel. When Detective Fraser finished reading the right to counsel to Mr. Khan from a printed card, he asked him if he wanted to call a lawyer now. Mr. Khan said that he did want to. I note that this is the second time Mr. Khan said he wanted to speak to a lawyer. Detective Fraser then read the primary caution, and asked if Mr. Khan wanted to say anything. Mr. Khan said, “no”.
[22] Detective Fraser testified that Mr. Khan was seated at the kitchen table (still handcuffed), while this conversation occurred. Detective Fraser was standing in the kitchen. Detective Fraser said he used a normal tone of voice.
[23] Detective Fraser testified that upon examining the substance further, he started to believe it might not be cocaine. He said to Mr. Khan that he was concerned for everybody’s safety. He asked Mr, Khan if the package was anything that is going to hurt him (Detective Fraser). He said he asked Mr. Khan, “what is this?” Detective Fraser testified that he was concerned that the substance may be fentanyl. Detective Fraser said Mr. Khan did not respond.
[24] Detective Fraser then said, “I just want to know if it’s going to hurt anyone if I open it and test it?” Then Mr. Khan responded, “It’s coke.”
[25] Detective Fraser then opened the package of the powdery substance, and did a nik test. The test reacted positively for cocaine. Detective Fraser testified that the test kit he used was specific for cocaine. He is not aware of a field test for fentanyl, either in 2016 or now.
[26] I will expand on the evidence regarding detective Fraser’s reasons for eliciting this statement below in my analysis.
[27] In cross-examination, it was suggested to Detective Fraser that maybe he misheard what Mr. Khan said, and that Mr. Khan said, “it looks like coke.” Detective Fraser rejected this suggestion. I accept Detective Fraser’s evidence on this point. I accept that he correctly heard what Mr. Khan said. Detective Fraser was close to Mr. Khan at the time the statement was made. And he was paying attention to Mr. Khan, because he was specifically asking him a question. Further, there is no evidence to the contrary, as Mr. Khan did not testify on either the voir dire or the trial.
[28] Officers were contacted to transport Mr. Khan at 5:29 a.m. At 5:45 a.m., drug squad officers turned custody of Mr. Khan over to two uniformed constables for transportation to 31 Division. The police left the residence at 6:17 a.m. Ms Belford was never arrested.
[29] Police facilitated a call by Mr. Khan to counsel at 6:20 a.m., over three hours after he was first detained and then arrested.
Has the Prosecution proven that Mr. Khan’s statement to police was voluntary?
[30] The Prosecution bears the burden to prove beyond a reasonable doubt the voluntariness of a statement by a defendant to a person in authority.
[31] There is no dispute that Detective Fraser was a person in authority when Mr. Khan made the statement. There is also no issue that Mr. Khan had an operating mind when the statement was made. Thus, the central issue is whether the words said by Detective Fraser in making the statement constituted an inducement, and had the effect of overbearing the will of Mr. Khan.
[32] The Prosecution argues that there is no evidence of any threats or inducements to Mr. Khan. The Prosecution argues that the language of Detective Fraser’s questioning of Mr. Khan around 5:20 a.m. did not amount to an inducement. The Prosecution also notes that Mr. Khan had twice been read a caution that he did not have to say anything (first by Detective Bhogal just after 3:05 a.m., and then by Detective Fraser just after 5:20 a.m.). The Prosecution also notes that there is no evidence on the voir dire from Mr. Khan saying that he felt he had no choice but to answer Detective Fraser’s questions.
[33] The Defence argues that the Prosecution has not met its burden to prove the statement voluntary. The Defence argues that the manner in which Detective Fraser asked the questions constituted an inducement. In particular, the Defence notes that Mr. Khan had asserted his right not to answer questions, and asked to speak to a lawyer, both at 3:05 a.m., and at 5:20 a.m. Detective Fraser asked first, “what is this?”, and Mr. Khan maintained his silence. Detective Fraser then asked, “I just want to know if it’s going to hurt anyone if I open it and test it?” And then Mr. Khan said, “it’s coke.” The Defence argues that Detective Fraser testified that it was his intention to communicate that his concern was safety, and it is reasonable to interpret the words of the question that way. The Defence argues that the effect of the words is a promise of a limited use of whatever answer Mr. Khan gives, which is an inducement. The Defence notes that Mr. Khan only answered the question when it was rephrased in this way.
[34] The general requirements for a statement to be voluntary are that at the time the statement is given, the detainee must have an operating mind, and the statement must not be the product of threats or inducements or oppressive circumstances such that the will of the detainee was overborne: R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38. As noted above, there is no issue raised about Mr. Khan having an operating mind at the time the statement was made. Nor was any argument raised in relation to oppression or police trickery in obtaining the statement.
[35] There is no evidence that any explicit threats or promises were made to Mr. Khan. The issue is whether Detective Fraser’s words and the context in which they were spoken could reasonably be interpreted as an inducement.
[36] Having considered all of the evidence, I am satisfied that Mr. Khan’s statement was voluntary. The words said by Detective Fraser to elicit the statement from Mr. Khan were not an express inducement. But I must also consider whether they would have been understood by Mr. Khan as an inducement such that they may have overborne his will.
[37] Counsel on behalf of Mr. Khan argues that this case is similar to the situation where a statement was found not to have been proven to be voluntary in R. v. Jackman, 2012 ONSC 3557 at paras. 142-145 (ONSC).
[38] In my view, although the circumstances in this case bear some similarity to Jackman, I do not find that the words used by Detective Fraser were an inducement. His words lack the quid pro quo that was present in Jackman. In Jackman, Justice Dawson held that the manner in which the police asked questions could reasonably have been viewed as a promise only to use the answers in relation to bail. Justice Dawson also held that an accused person in Ms Jackman’s position (i.e., under arrest and detained) would naturally want bail. The clear implication of this is that Justice Dawson found that the linking by the police of answering their questions to obtaining bail was an inducement because it gave the message to the detainee that, if you answer our questions, you are more likely to get bail.
[39] I want to be clear that I am not suggesting that to give rise to a finding that a statement is involuntary, an inducement must always involve a quid pro quo. However, situations which can be interpreted as the police offering something of value to a detainee in return for a statement will often more clearly amount to inducements than situations where such a quid pro quo is absent.
[40] Although I accept that in principle a statement by an officer to the effect of, “if you tell us X, we won’t use it against you” could be an inducement that would render a statement involuntary, the words used in this case by Detective Fraser are not so clearly an inducement that I find they render the statement involuntary. I find that the language is simply too soft to be found to have overborne Mr. Khan’s will.
[41] In making this finding I note that Mr. Khan did not testify on the voir dire. He had no burden to testify, and his not testifying does not change the Prosecution’s burden to prove voluntariness. But in the face of a record which I find is not sufficient to raise a doubt about voluntariness, I have no countervailing evidence to weigh in the absence of testimony from Mr. Khan.
Did the police breach Mr. Khan’s rights under s. 10(b) of the Charter by delaying his opportunity to contact counsel and/or by eliciting a statement from him before he was provided with an opportunity to contact counsel?
[42] The defendant bears the burden on a balance of probabilities to show that his s. 10(b) rights were infringed.
[43] There are two s. 10(b) breaches alleged by the Defence. I will deal with each in turn.
(i) Delay in implementation
[44] The first alleged breach is delay in implementing Mr. Khan’s right to counsel. As it set out above, the timeline is not in dispute. Mr. Khan was detained and handcuffed when the ETF entered at 2:57 a.m. He was placed under arrest a few minutes later by Detective Bhogal. He was read his right to counsel without delay soon after 3:05 a.m. Thus, there is no dispute that the police complied with the informational component of the right in a timely way.
[45] When he was read his right to counsel, and asked if he wanted to call a lawyer, Mr. Khan said he wanted to speak to a lawyer. This was also soon after 3:05 a.m.
[46] However, rather than take any steps to facilitate contact with counsel, the police conducted their search of the house. This took over two hours. And Mr. Khan still had not been given an opportunity to contact counsel by 5:20 a.m., when Detective Fraser elicited the statement from him.
[47] Section 10(b) requires that police implement the right to counsel without delay. This has been interpreted to mean immediately: R. v. Suberu, [2009] 2 S.C.R. 460 at para. 41, 2009 SCC 33.
[48] The law is clear that the police are permitted to delay implementation for purposes of officer safety, particularly in the context of a search, in order to gain control of the surroundings. However, when this is done police must turn their mind to the specific circumstances that of a case that justify delay, and also take reasonable steps to minimize the amount of delay: R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Rover, 2018 ONCA 745 at para. 26; Suberu at para. 42.
[49] The law is also clear, given the importance of solicitor-client privilege, that a detainee or an arrestee must be given privacy in order to contact counsel. Allowing a detainee to contact counsel in circumstances that are not private from the police will itself give rise to a s. 10(b) breach.
[50] The Defence argues that Mr. Khan’s s. 10(b) rights were violated by the delay in giving him an opportunity to contact counsel. Although he was arrested and read his right to counsel at approximately 3:05 a.m., and asked to speak to a lawyer at that time, no steps were taken by any officer to facilitate him contacting counsel. 31 Division was 5 minutes away, and he could have been taken there to contact counsel.
[51] The Prosecution argues that Mr. Khan could not have been given privacy in the home to contact counsel. It was not a large space. In addition, even though the ETF had cleared the scene, there remained the possibility of something being used as a weapon if Mr. Khan was left alone to give him privacy to contact counsel, or of destruction of evidence.
[52] The Prosecution also argued that taking Mr. Khan to the station to contact counsel soon after his initial arrest at 3:05 a.m. was not practical because he would have been subjected to a level 3 search (a strip search).
[53] Detective Fraser testified that he was the decision-maker regarding access to counsel at the scene and when to transport Mr. Khan.
[54] In relation to the delay in implementing the right to counsel, Detective Fraser testified that he did not feel that Mr. Khan could be given sufficient privacy in a manner that was also safe for police to allow him to contact counsel from the home. He testified that although it may have been possible to find a private area within the residence, he would not have been comfortable leaving Mr. Khan alone in the home. Although the police were searching, since it was Mr. Khan’s residence, and he was more familiar with it than the police were, Detective Fraser felt there were still safety concerns about possible access to weapons or items that could be used as weapons if Mr. Khan were left alone. He testified that his intention was that Mr. Khan would be given access to counsel when he was transported to 31 Division, where it could be done in privacy.
[55] Detective Bhogal, who gave right to counsel upon the initial detention shortly after 3:05 a.m., also testified that he was of the view that they could not facilitate contact with counsel in the apartment. There was no private area where Mr. Khan could phone from in the apartment. Also, in his view they could not leave Mr. Khan alone in an area that was not monitored, for his own safety and officer safety, in case something was concealed somewhere.
[56] Detective Fraser testified that Mr. Khan was kept at the home during the search because they would not take him to 31 Division if they had not located anything of evidentiary value in the search which would form the basis for a charge. Detective Fraser testified that if nothing had been found to warrant a charge, Mr. Khan would have been released from the residence. Detective Stacey McCabe gave similar evidence on this point. However, Detective Fraser was the officer with decision-making authority on the scene in relation to transportation of Mr. Khan, according to both Detective Fraser and Detective McCabe.
[57] With respect, in my view, Detective Fraser’s approach of not implementing right to counsel unless and until something incriminating was found is not consistent with the requirement that s. 10(b) be implemented without delay. In my view, waiting to see whether anything will be found in the search is asking the wrong question.
[58] I accept that at the time of the initial entry, particularly during the ETF entry, the police were entitled to delay s. 10(b) implementation (and indeed the informational component) in order to gain control of the home. But I find as a fact that by approximately 3:05 a.m., the police had control of the home. Mr. Khan had been arrested and handcuffed. Ms Belford was detained. Both were being compliant according to the agreed statement of facts. And the ETF had cleared the home (including briefly detaining the upstairs tenants). At this time, with the scene secured, the question the police should have asked themselves, but failed to, is “how can we now implement Mr. Khan’s right to counsel and have him contact counsel?”
[59] I accept that in the circumstances of this case, contacting counsel could not be done in the home. The apartment was relatively small. It would be difficult, if not impossible to facilitate privacy. I also accept that even if it may have theoretically been possibly for the police to give Mr. Khan privacy to make a call in, for example, the bathroom, the police were entitled to have safety concerns about the notion of placing Mr. Khan alone in a room in his own home, where possibly he could have something hidden that the police had not found that would pose a safety risk. I note that it is not clear to me in any event on the record before me that the acoustics would in fact have created privacy in the bathroom. There was no evidence about this point.
[60] In my view, whether or not the police would find evidence of a crime in the search is the wrong question to ask in deciding how and when to facilitate access to counsel. Mr. Khan was under arrest at 3:05 a.m. He said he wanted to speak to a lawyer. There was no reason his presence was required while the search was ongoing. He had a right to have his request to speak to counsel acted on without delay.
[61] That this is required by s. 10(b) of the Charter is evident on the facts of this case. Mr. Khan was arrested at 3:05 a.m. But because he was kept at the home during the search, he was not given the opportunity to contact counsel until 6:20 a.m., over three hours later. On the evidence of the police, the search took approximately two hours, between when it started and when the drugs were found.
[62] Both Detectives Fraser and McCabe testified that 31 Division was a 5 minute drive away from the search location. Access to counsel could have been facilitated quickly by taking Mr. Khan to 31 Division.
[63] And in the grand scheme of things, this is not a particularly long search. Imagine a longer search. Is a defendant just to wait on his opportunity to contact counsel because it is more convenient for the police to conduct the search? And if nothing is found, just let the defendant go?
[64] In my view, the police approach to implementation of the right to counsel in this case of waiting to see if they find anything in the search undermines the purpose of the right to counsel. As the Court of Appeal noted in Rover at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while being detained. The psychological value of access to counsel without delay should not be underestimated.
The police approach in this case undermines that purpose.
[65] Further, as I will come to regarding the elicited statement before Mr. Khan spoke to counsel, keeping Mr. Khan at the scene, without giving him the opportunity to speak to counsel, created the situation where he was still present when Detective Fraser elicited a statement from him.
[66] The Prosecution argues that taking Mr. Khan to the station was not a practical alternative, because he may have been strip searched at the station, and that would have infringed his privacy rights. I find that this retrospective concern on the part of Prosecution counsel for Mr. Khan’s privacy rights is a red herring. I find on the evidence before me that concern that Mr. Khan might be strip searched if he was taken to the Division played no role in the police decision-making to keep him at the home and not implement his right to counsel.
[67] In his evidence, Detective Fraser said nothing about the possibility of a strip search factoring into his decision not to transport Mr. Khan earlier.
[68] Nor did Detective McCabe in either examination-in-chief or cross-examination. Rather, the strip search issue arose for the first time in the Prosecution’s re-examination of Detective McCabe. She was asked in re-examination, if someone was placed under arrest for possession of a schedule I drug for the purpose of trafficking, when a search warrant was to be executed but before any drugs were found, what would happen if the person were brought to a police station. Detective McCabe testified that more often than not a level 3 search (a strip search) would be done. She said the concern is that people may have drugs hidden in or on their body. She also said that whether a person had a history with respect to weapons or firearms would also affect whether a level 3 search would be done. She said she would request a level 3 search in those circumstances, but ultimately the decision of whether such a search would be done would be up to the officer in charge of the station (i.e., the booking sergeant). If a level 3 search is done, it happens after booking, and before the person is given the opportunity to contact counsel.
[69] As noted above, Detective McCabe was not involved in the decision to keep Mr. Khan at the home during the search. She agreed that it was Detective Fraser’s decision. Detective Bhogal also testified that it was Fraser’s decision whether and when to transport Mr. Khan.
[70] Further, while Detective McCabe’s evidence was that had Mr. Khan been transported, officers may have asked that a level 3 search be done, and the booking sergeant may have agreed and ordered a level 3 search, she did not suggest that she or anyone else turned their mind to that concern on the night of December 20, 2016. I find as a fact that the possibility of a strip search played no part in any of the officers’ decision-making about implementing right to counsel, or when to transport Mr. Khan.
[71] Further, on the record before me, the possibility of a strip search is speculative. The highest Detective McCabe’s evidence went was that if it was her, she would have asked for a strip search. And she expected that the sergeant would authorize it in circumstances of an arrest for possession for the purpose of schedule I drugs. But because Mr. Khan was not transported to 31 Division soon after 3:05 a.m., and because it would have been the decision of the booking sergeant, I find it is speculative to hypothesize about whether, had those things happened, he would have been strip searched. Indeed, there is no evidence in the record of whether, in fact, Mr. Khan was strip searched when he was taken to the Division after 5:45 a.m., information which Prosecution counsel could have obtained from the police. And it is an open question, one on which I make no finding, whether a strip search would have been justified, in circumstances where the record supports that when the ETF entered to execute the search warrant, both Mr. Khan and Ms Belford were in bed. It was 2:57 a.m., and Ms Belford was found in the bed, and Mr. Khan was found in the area of the bed, according to the agreed statement of facts.
[72] Ultimately, I find that what was at issue in the decision to keep Mr. Khan at the home while the search was conducted was officer convenience – it was easier for the officers. If nothing turned up in the search, he would just be released, and no booking would be required. If something was found, as happened, then he would be transported and contact with counsel facilitated. Unfortunately, this is not constitutionally compliant.
[73] I find that the delay in facilitating Mr. Khan’s contact with counsel violated his rights under s. 10(b) of the Charter.
(ii) The Elicited Statement
[74] It is clear on the facts I have outlined above that the statement was elicited from Mr. Khan by Detective Fraser. It is also clear that it was elicited after Mr. Khan had said twice that he wanted to speak to a lawyer – just after 3:05 a.m., and again just after 5:20 a.m. He had also told Detective Fraser in response to the caution that he did not wish to say anything.
[75] The Defence argues that by eliciting the statement before Mr. Khan had been given an opportunity to contact counsel, Detective Fraser breached Mr. Khan’s s. 10(b) rights. Although the Defence does not challenge the credibility of Detective Fraser’s evidence that he felt there was a safety concern about fentanyl, the Defence argues that Detective Fraser created the safety concern by doing the nik test in the apartment. The safer course would have been to seal the substance in an evidence bag, and bring it to the property unit to be processed. Further, the questions that Detective Fraser asked at 5:20 a.m. were direct questions about the nature of the substance. They go to the heart of the offence Mr. Khan was arrested for.
[76] I pause to note that it is well-established, and has been for many years, that once a detainee requests to speak to a lawyer, the police have an obligation to refrain from eliciting evidence: R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50.
[77] The Prosecution does not dispute that the statement was elicited. Rather, it is argued that the eliciting was permitted and does not breach s. 10(b) because Detective Fraser had a purpose of officer safety because he did not know if the white powder might be fentanyl. And if it was fentanyl, it would affect his decision about transportation for the substance. At the time fentanyl was a relatively new problem on the streets of Toronto, and there was publicity in the media, and among police about its risks (some of which were accurate and some not).
[78] I reject this argument. I accept that subjectively Detective Fraser had concerns about whether the substance was fentanyl. But I reject that there was any urgency which would allow an exception to the police duty to refrain from eliciting a statement from Mr. Khan before he was been given an opportunity to speak to counsel. Further, on the record before me, I reject as a fact that objectively viewed, questioning Mr. Khan about the nature of the substance was an action that forwarded officer safety (or the safety of the occupants of the apartment). I further find that ultimately what motivated Detective Fraser’s actions in eliciting the statement was officer convenience, not safety.
[79] Detective Fraser testified that when he found the white powdery substance in the shed, he initially believed it to be cocaine. He brought it into the house. By this time it was about 5:20 a.m. Detective Fraser’s evidence about his reasons for eliciting the statement was that although he initially thought the substance was cocaine, he became concerned that it may be fentanyl. He was concerned that if it was fentanyl, and he opened it, it would be dangerous. He testified that it was his understanding at the time that just a little bit of fentanyl can kill. At that time he had dealt with fentanyl before, but not a lot. He testified that at that time, drug exhibits would normally be taken to the Division, where they would be weighed and placed in a locker. In addition, a sample would be taken to send to Health Canada for testing. He testified that if he knew the substance to be fentanyl, he would not take it to 31 Division, but rather would take it to the property bureau in Scarborough, and it would be dealt with differently. Detective Fraser testified that he was concerned if the drug was fentanyl, because if an officer came into contact with it, they could possibly overdose. At that time, officers were not authorized to carry narcan/naloxone. Thus, if there was an overdose, it would be necessary to call EMS, and there would be a delay in response.
[80] Detective Fraser testified that he questioned Mr. Khan about the nature of the substance only for officer safety reasons. He testified that if he had been told that the substance was fentanyl, he would have taken it directly to the property bureau in Scarborough, rather than to 31 Division (in order to avoid risk to officers at 31 Division).
[81] I accept that Detective Fraser’s evidence that his subjective belief was that he was concerned about the risk posed by the substance if it was fentanyl. I note that his evidence on this issue was supported to some degree by the expert evidence of Detective Margetson that in 2016 fentanyl was relatively new on Toronto’s streets, and there was a lot of concern about the risks it posed to officers or members of the public who came in contact with it (some of it incorrect [3]).
[82] The decisions of the Supreme Court in relation to the duty to hold off questioning a detainee until he has had an opportunity to contact counsel posit as a theoretical possibility that circumstances of urgency may permit questioning before access to counsel has been given. However, I am not aware of any case where the Supreme Court has applied this principle to hold that answers elicited before access to counsel was given were not obtained in breach of s. 10(b): see Manninen at p. 1242; Ross at pp. 12-13; Bartle at p. 192; Taylor at paras. 23, 31.
[83] Turning to the record before me, I do not accept that in the circumstances faced by Detective Fraser, viewed objectively, officer safety justified eliciting a statement from Mr. Khan. I explain my reasons for these conclusions below.
[84] If a court were to find in a particular case that some exigent circumstances involving officer safety justified eliciting a statement before a detainee was given the opportunity to contact counsel, I would expect that those circumstances would require at least a significant risk to officer safety, and circumstances of urgency such that there was not time to give the person the opportunity to contact counsel before a statement was elicited. Certainly the decisions of the Supreme Court referred to above at paragraph 82 that reference the possibility of questioning before access to counsel is given all use the language of “urgency”.
[85] I find that the circumstances in this case created no urgency to justify eliciting a statement from Mr. Khan before he was given the opportunity to speak to counsel.
[86] The options that Detective Fraser was weighing were taking the white substance and lodging it at 31 Division, which was a 5 minute drive away at that time of night, or taking it to the property bureau in Scarborough to lodge, which he testified was a further drive than the drive to 31 Division.
[87] An obvious course of action which would not have involved eliciting a statement from Mr. Khan before he was given the opportunity to speak to counsel would have been to package up the substance in an evidence bag, and drive it to the property bureau to be lodged. Indeed, in cross-examination, Detective Fraser agreed that he could have done just that – seal it up in an evidence bag, and transport it to the property bureau, where it could have been processed for Health Canada testing – without eliciting a statement from Mr. Khan. However, he said that at the time of the search they were in the area of 31 Division (which I take notice is in the northwest part of the city), and the property bureau is at 330 Progress, which is in Scarborough. He agreed that he was saying that the distance is further to the property bureau than to 31 Division.
[88] Although I accept that Detective Fraser subjectively had a concern about officer safety based on the possibility the substance might be fentanyl, I find that the real motivator for his questioning Mr. Khan about the nature of the substance was that it was more convenient for Detective Fraser to lodge the substance at 31 Division, rather than drive to the property bureau in Scarborough.
[89] Further, I find that, objectively viewed, the step Detective Fraser took of questioning Mr. Khan about what the substance was did not promote the goal of officer safety. Indeed, it created more risk to officer safety. When the statement was elicited, and Mr. Khan said it was cocaine, Detective Fraser proceeded to open the bag to do a nik test. [4] Thus, relying on Mr. Khan’s statement that the substance was cocaine, Detective Fraser opened the bag and risked exposing himself and others in the apartment to the substance. Thus, eliciting the statement in order to decide whether to do the nik test then and there did not promote officer safety; rather, it put it at risk. And it did so in circumstances where the creation of that risk caused by opening the bag was entirely unnecessary. Detective Fraser could simply have put the substance in an evidence bag and taken it to the property bureau to be lodged. It could then be dealt with in more controlled circumstances. In some circumstances, it may be appropriate for a court to afford a level of defence to a police officer’s decisions about officer safety. Respectfully, this is not one of them.
[90] It is not necessary for me to make any finding as to why Mr. Khan said the substance was cocaine. I note that Detective Margetson in his testimony said it is not uncommon for drugs to have fentanyl in them and a person trafficking in them (or consuming them) not to know. That level of information may not have been available to officers working on the street in 2016. I do not fault Detective Fraser for not having 2019 knowledge in December 2016. But even in 2016, it would seem to be an unwise choice to rely on the truthfulness and correctness of a suspected drug trafficker’s statement as to the nature of a substance as a means to protect officer safety.
[91] During oral submissions I asked Prosecution counsel if they could direct me to any case where a court had held that an officer eliciting a statement from a detainee who had requested counsel prior to allowing the person to contact counsel had been found not to violate s. 10(b) of the Charter. Counsel directed me to the decision of the British Columbia Court of Appeal in R. v. Patrick, 2017 BCCA 57. In my view Patrick is distinguishable from this case. Patrick involved a roadside stop of a vehicle, and a search done for officer safety pursuant to a common law investigative detention (see at paras. 2, 11, 57-62, 102 of Patrick). The questioning issue in Patrick was argued under s. 8, and not under s. 10(b). Further, I note that in Patrick, the court left open the question of whether answers to questions asked prior to being given access to counsel would be admissible evidence at a trial (see at paras. 12, 104; see also Suberu at paras. 43-45).
[92] For these reasons, I find that Mr. Khan’s rights under s. 10(b) of the Charter were also violated by Detective Fraser eliciting a statement from him before he was given an opportunity to speak to counsel.
Section 24(2) – Should the evidence be excluded?
[93] The defendant bears the burden on a balance of probabilities to show that the admission of the evidence obtained in a manner that violated the Charter would bring the administration of justice into disrepute.
[94] The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, requires me to consider the following factors in assessing whether in all the circumstances, admission of the statement and/or the physical evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendant; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-98, 112-115.
[95] The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.
[96] The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.
[97] The third branch of the Grant analysis requires the court to consider the societal interest in a trial on the merits. Admission of reliable physical evidence may be more likely to support the societal interest in the truth-seeking function of a trial than will admission of a statement: Grant at paras. 79-84, 89-98, 112-115.
[98] At the same time, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach, the long terms impact on the administration of justice may favour exclusion of evidence.
[99] Considering the Grant factors, I find that the statement elicited from Mr. Khan by Detective Fraser after Mr. Khan had twice asked to speak to counsel but before he was given an opportunity to speak to counsel should be excluded from evidence; however, I find that the physical evidence, including the fentanyl, the scale and the money should not be excluded. I will deal with each in turn.
[100] The breach involving the elicited statement was serious. Mr. Khan was given the informational component of the right to counsel when he was first arrested, at 3:05 a.m. At that time he said he wanted to speak to a lawyer. Over two hours later he was still at the apartment and had not been given the opportunity to speak to a lawyer. He was given the informational component of the right to counsel again at 5:20 a.m., and again said he wanted to speak to a lawyer.
[101] The law is well-settled that the police must not elicit statements from people under arrest or detention before they are given the opportunity to speak to counsel (if, as here, the detainee has said they wish to speak to counsel when given the informational component of the right). The record is clear in this case that Detective Fraser elicited the statement, after Mr. Khan had twice said he wanted to speak to a lawyer. There was no urgency for Detective Fraser to pose the questions to Mr. Khan. He could simply have packaged up the powdery substance in an exhibit bag, and taken it to the property bureau to be processed under more controlled conditions. Ignorance of or failure to follow established Charter standards cannot be equated to good faith: Grant at para. 75; R. v. Kokesch, [1990] 3 S.C.R. 3 at pp. 32-33.
[102] Prosecution counsel relies on the decision of R. v. Nguyen, 2010 ONCA, in particular at paragraphs 13-18 as favouring admission of the evidence. In my view, Nguyen is distinguishable from this case. Unlike this case, the Court of Appeal held in Nguyen that the incriminatory answer given in that case was not responsive to the question that had been posed by the officer. Thus, in addition to accepting that the question in Nguyen was motivated by officer safety, it is clear that the incriminatory response given by the detainee in Nguyen was not a response that the officer was seeking in asking the question. By contrast, in this case, although I accept that Detective Fraser subjectively had a safety concern about fentanyl, it is obvious to any reasonable observer that the question asked of what the substance was, would be reasonably likely to elicit incriminatory evidence. Further, as I have explained above, I do not accept that objectively viewed, Detective Fraser’s questioning of Mr. Khan promoted officer safety.
[103] As I found above, the issue was not really officer safety, but rather was officer convenience. Thus, I find the breach was serious and favours exclusion of the statement.
[104] The impact of the breach on Mr. Khan’s Charter rights was significant. The statement from him is self-incriminatory, as it is a statement which could be said to show knowledge about the nature of the substance (although as it turns out, either incorrect or misleading). Grant continues the concern which has existed since early in the days of the Charter, and indeed, pre-Charter, that protecting against self-incrimination is a fundamental value of our criminal justice system. It is clear that Mr. Khan’s statement was not discoverable absent the eliciting done by Detective Fraser.
[105] Lastly, I want to underline that it is the elicitation of the statement in particular that concerns me and leads me to exclude it. The delay in giving Mr. Khan access to counsel (from 3:05 a.m. until the time the statement was elicited, shortly after 5:20 a.m.) is an important factor. It aggravates the breach in the sense that Mr. Khan would not still have been sitting in the apartment, not yet having been given an opportunity to speak to counsel, if the police had not delayed implementing his request to speak to a lawyer. However, the case for exclusion is clearer and stronger due to the fact that the statement was elicited by Detective Fraser. Thus, I find that the second branch of the analysis also favours exclusion.
[106] On the third branch, I accept that the statement is helpful evidence to the Crown’s case. The statement, if admitted into evidence would have significant probative value on the issue of possession. [5] In that sense the third branch would favour admitting the evidence.
[107] But in my view the long term repute of the administration of justice favours the exclusion of the evidence. This was a serious Charter breach, with serious consequences on the Charter rights of Mr. Khan. He was arrested at 3:05 a.m. He immediately said he wanted to speak to a lawyer. The police had the search scene under control within minutes. 31 Division was 5 minutes away. Rather than take any steps to let Mr. Khan speak to a lawyer, the police kept him handcuffed in the apartment for over two hours, at which point Detective Fraser elicited the statement from him. And notably immediately before the incriminating statement was made, Mr. Khan again said he wanted to speak to a lawyer. On balance, I find that it would bring the administration of justice into disrepute to admit the statement into evidence: R. v. Harrison, [2009] 2 S.C.R. 494 at para. 34, 2009 SCC 34; R. v. McGuffie, 2016 ONCA 365 at paras. 61-64.
[108] My finding with respect to the fentanyl, the scale and the money is different. I note that all of these items were found before Detective Fraser elicited the statement from Mr. Khan. There is no causal connection between the finding of these items and either of the s. 10(b) breaches. I accept that they are evidence obtained “obtained in a manner” such that a s. 24(2) analysis is required, because the finding of these items is temporally and contextually connected to the s. 10(b) breaches: Strachan; R. v. Pino, 2016 ONCA 389. But the absence of a causal connection between the finding of these items and the Charter breaches makes the impact of the breaches much less serious in relation to the physical items seized.
[109] On the first Grant factor, my analysis is the same as above, in the sense that the s. 10(b) breaches were serious. But this is significantly mitigated in the overall 24(4) balancing by the fact that the Charter breaches had no causal link with the finding of the physical evidence.
[110] On the second Grant factor, I find that in relation to the physical evidence, the impact of the breaches on Mr. Khan’s Charter rights was minimal. The items would have been discovered absent the breaches, and indeed had already been discovered prior to the second Charter breach, the eliciting of the statement: Grant at para. 122.
[111] On the third branch, I note that unlike the statement, the fentanyl, the scale and the money are reliable physical evidence.
[112] The Defence argues that the physical evidence should be excluded for similar reasons to those given in Rover. With respect, I find that the circumstances in Rover are distinguishable, and were a stronger case for exclusion of physical evidence than this case. First, there was strong evidence in Rover of a practice or policy of delaying s. 10(b) rights in order to obtain and execute search warrants. Thus, the evidence in Rover supported a finding of a systemic problem which aggravated the seriousness of the Charter breach. Further, without understating the seriousness of the Charter breaches in this case, the facts in Rover were more extreme, in that the detainee was denied the opportunity to contact counsel for six hours.
[113] Considering these factors together, I find that the 24(2) analysis favours admitting in evidence the physical items seized.
Has the Prosecution proved Mr. Khan’s guilt beyond a reasonable doubt?
[114] The Prosecution bears the burden to prove the charges beyond a reasonable doubt.
[115] The Prosecution acknowledges that its case for possession is circumstantial. The Prosecution argues that the only reasonable inference from the whole of the evidence is that Mr. Khan was in possession of the fentanyl for the purpose of trafficking, and possessed the money and it was proceeds of crime. In particular, the prosecution argues that the possibility that Ms Belford was in sole possession of the drugs and/or the money is an unreasonable or speculative inference.
[116] The Defense argument is twofold. First, it is argued that there is insufficient evidence that Mr. Khan was an occupant of the apartment, rather than someone who was merely present at the time the warrant was executed. Implicit in this argument is the further argument that if it has not been proven that the Mr. Khan was a regular occupant of the apartment, this should give rise to a reasonable doubt about his guilt. Second, the Defence argues that even if the evidence shows that he lived there, the evidence is insufficient to prove beyond a reasonable doubt that he possessed the drugs and the money, either alone or jointly with Ms Belford. The Defence points to three other possible inferences: that an unknown person accessed the backyard by the unlocked gate and left the drugs in the unlocked shed; that one of the upstairs tenants left the drugs in the shed; or that Ms Belford possessed the drugs alone. I will discuss below whether any of these three inferences is reasonable such that it can leave a reasonable doubt.
[117] The Defence concedes that if the court finds that the Prosecution has proven beyond a reasonable doubt that Mr. Khan was in possession of the drugs and/or the money, the quantity, value and packaging of the drugs are sufficient to find that that the possession was for the purpose of trafficking.
[118] In order to prove possession, the Prosecution must prove knowledge of the substance (that it was a controlled drug), and control over the substance: R. v. Terrence, [1983] 1 S.C.R. 357; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 15, 17, 2010 SCC 8; R. v. Bains, 2015 ONCA 677 at paras. 154-157; R. v. Thompson, 2010 ONSC 2997 at paras 9-10. Section 4(3) of the Criminal Code provides for three forms of possession. In this case the Prosecution relies on a theory of constructive possession by Mr. Khan, either alone, or jointly with Ms Belford. In order to prove constructive possession, the Prosecution must prove: (1) that Mr. Khan had knowledge of the character of the substance (the drugs and the money – in the case of the money, including that it was obtained by crime); (2) that he knowingly put or kept the drugs and/or the money in a particular place, whether or not that place belongs to him; and (3) that he intended to have the drugs and/or the money in the particular place for his use or benefit or that of another person.
[119] The basic evidence is set out above in my summary of the facts relevant to the voluntariness and Charter applications.
[120] I will deal first with the issue of whether the evidence is sufficient to show that Mr. Khan was living at the apartment. I find that on the record before me the evidence is sufficient for me to find as a fact that Mr. Khan lived in the apartment with Ms Belford. I accept the following evidence in coming to this conclusion:
- The landlord, Mr. Hoang Nguyen testified. He testified that Shauna Belford and “TK” lived in the basement apartment of the home. He identified Mr. Khan in court as TK who lived there. He said that when Ms Belford signed the lease, Mr. Khan was present. Ms Belford told Mr. Nguyen in Mr. Khan’s presence that Mr. Khan would be living in the apartment with her, and introduced him as her husband. In addition, the lease states that there will be two tenants, listed as “myself” (Ms Belford), and “TK”. I accept Mr. Nguyen’s evidence and true, and I note that it is corroborated by the lease agreement. I further hold that Ms Belford’s statement about Mr. Khan living at the apartment at the time of the signing of the lease is an admission by silence adopted by Mr. Khan. Although courts must be cautious in applying the principle of adopted admissions by silence, I find that it applies in these circumstances. Ms Belford’s statement that Mr. Khan was her husband and was going to live at the apartment was made in his presence, at a meeting the purpose of which was to sign the lease, and during which the name that Mr. Nguyen said he uses (TK) was put on the lease. In these circumstances I find that Mr. Khan adopted Ms Belford’s statement, and I can use it as evidence that he lived at the apartment: R. v. Baron and Wertman, 31 C.C.C. (2d) 525 (ONCA), at pp. 539-40; R. v. Robinson, 2014 ONCA 63 at paras. 48-58.
- The upstairs neighbours, Ms Luzdiminda Agno, Mr. Edgar Agno, and Mr. Joseph Agno, also testified that Mr. Khan lived in the basement unit with Ms Belford. They testified that they saw him at the house from time to time (but not frequently). The defence argues that this evidence is insufficient to show he lived there. I agree that if it stood alone, it might not be enough to prove he lived there. But it supports the evidence of the landlord and the lease, and is the type of frequency that one expects in seeing neighbours who one is not on a friendship basis with, but sees from time to time, depending on each other’s schedule.
- The items found in the apartment support that both a man and a woman were living there. Both men’s and women’s clothing was found in the apartment. Detective McCabe found business cards in the apartment in the names of both Ms Belford and Mr. Khan.
- Mr. Khan was present in the bedroom at 2:57 a.m. when the warrant was executed. The inference that he was sleeping there, when taken with the rest of the evidence supports that he lived there.
[121] On this basis, I reject the defendant’s submission that the evidence is insufficient to prove he lived at the apartment. However, the fact that he was a resident of the apartment does not in itself prove that he had the knowledge and control necessary to prove possession (although his residency is certainly relevant evidence in considering if possession has been proven).
[122] I turn then to the defendant’s second submission, about other inferences he submits are reasonably available on the evidence besides him being in possession of the drugs and/or money.
[123] I find that the evidence as a whole is sufficient to exclude the inference that some unknown stranger put the drugs in the shed (or the money in the closet). I find that any inference about possession by an unknown stranger is not a reasonable inference on the record before the court.
[124] The access to the backyard was from Mr. Khan and Ms Belford’s unit. The backyard was fenced. Although it is true that the evidence shows that the gate to the backyard was not locked, and the shed was not locked, given the value of the drugs based on Detective Margetson’s evidence I reject the inference that some unknown stranger would put the drugs in an unlocked shed on someone else’s property. Detective Margetson testified that the value of the fentanyl in late 2016 was between approximately $58,600 to $73,250.00. I accept his evidence as credible and reliable. He explained his reasons for the values he gave in a thorough manner. I find that the inference that some unknown stranger put the drugs in the shed is unreasonable and speculative.
[125] I also find that the evidence is sufficient to exclude the inference that either the landlord, or one or more of the other tenants of the home from the upper unit put the fentanyl in the shed. The landlord and the three tenants from the upstairs unit testified. They each denied having placed anything in the shed. I found them to be credible witnesses. The shed is not accessible from the other unit; rather, it is accessible from a sliding door at the rear of Mr. Khan and Ms Belford’s unit. Further, the upstairs tenants who testified said they did not use the backyard. I accept their evidence.
[126] I note as well that the possibility of an unknown stranger or one of the upstairs tenants hiding the drugs in the shed would not explain the large amount of cash hidden in the closet in the baby’s bedroom.
[127] In my view, this leaves three possible reasonable inferences related to possession of the drugs and the money: 1) that Mr. Khan was in sole possession of either or both of these items; 2) that Mr. Khan and Ms Belford were in joint possession; and 3) that Ms Belford was in sole possession.
[128] Either of the first two inferences would be sufficient to find Mr. Khan guilty. However, if I have a reasonable doubt in relation to the third inference, then I must find him not guilty.
[129] Ms Belford was not called as a witness at trial.
[130] The Prosecution case for possession is a circumstantial one. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 30, 35-42, 2016 SCC 33, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.
[131] In considering the line between reasonable alternative inferences, and speculative ones, Justice Cromwell writing for the court held as follows at paragraphs 37-38:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[132] On the evidence before me, the central facts evidence relating to the issue of possession of the drugs and the money are as follows.
[133] The appearance of the apartment was that a couple lived there. The apartment had both men’s and women’s clothing and toiletry items in it. One room was furnished for a baby.
[134] Detective McCabe found business cards in the apartment in the names of both Mr. Khan and Ms Belford (I understood these to be distinct cards for Mr. Khan and for Ms Belford, not cards for a jointly owned business).
[135] Mr. Khan and Ms Belford were both present in the apartment, in the bedroom, when the warrant was executed at 2:57 a.m.
[136] As outlined above, I find that the evidence is sufficient to prove that Mr. Khan was living at the apartment with Ms Belford.
[137] The drugs were found in an unlocked storage shed in the backyard inside a bag for a folding chair. There was nothing in the storage shed to draw a link to any particular person (for example, no identification or other identified possessions of a particular person). Detective Fraser agreed in cross-examination that besides the drugs, the only items in the shed were the two folding chair bags hanging on a nail (one of which had the drugs in it). He agreed in cross-examination that there was nothing of evidentiary value found in the shed to connect the shed to a specific person (for example, no fingerprints, no DNA, no articles of clothing or identification).
[138] The money was found in a closet organizer in the baby’s room (not the room Ms Belford and Mr. Khan were found in when the ETF entered the apartment).
[139] Neither the drugs, nor the money, nor the scale was in plain view.
[140] I find that there is nothing about the particular location within the home (the drugs in the shed, the scale somewhere in the front entrance, and the money in the closet in the baby’s room in a closet organizer), that assists in ruling out the inference that Ms Belford was in sole possession of the drugs and/or the money. The locations within the home and shed where the drugs and money were found do not point one way or the other as between sole possession by Mr. Khan, joint possession, or sole possession by Ms Belford.
[141] There is no fingerprint or other forensic testing evidence to connect the items found to either Mr. Khan or Ms Belford. Detective Fraser testified that he made the decision not to have the exhibits, including the scale, fingerprinted.
[142] There is no evidence of the movements of either Mr. Khan or Ms Belford that could be associated with drug trafficking.
[143] For sake of completeness, I note that I do not draw any inference from the evidence of footprints in the snow leading from the rear sliding door to the shed (where the drugs were found). Detective Fraser testified that when he went out to the shed to search (and ultimately found the drugs), there were footprints in the snow on the ground in the backyard going from the sliding door to the shed. As noted above, the agreed statement of facts, and the evidence from the officers who testified, was that the ETF entered the home first to secure the residence. There is no specific evidence as to whether the ETF checked the shed in securing the home. None of the ETF officers testified. None of the drug squad officers who testified saw specifically where the ETF went, as they were waiting outside and a bit down the street. One would expect that the ETF would search the shed if their object was to make the premises safe prior to the search (particularly, since they entered the separate apartment of the upstairs tenants who were not the subject of the warrant). In the circumstances, I am not prepared to infer that the footprints came from Mr. Khan (or indeed, from Ms Belford). There was no evidence describing the size or shape of the footprints.
[144] Prosecution counsel argue that the inference that Ms Belford was in sole possession of the drugs and the money is unreasonable. They argue it is an unreasonable inference for essentially four reasons, which I address below.
[145] First, Prosecution counsel argue that it is an unreasonable inference because Ms Belford was eight months pregnant. The argument is that the drug is fentanyl, it is a very dangerous substance. And for that reason Ms Belford would not possess it out of concern for her soon to be born child, or out of concern for a heightened interest in her own well-being while she was pregnant.
[146] With respect, I am not prepared to rule out the inference that Ms Belford was in sole possession because she was pregnant. In my view this argument is based on stereotypes about women and about pregnant women. In particular, what lies beneath this argument are assumptions about the character of pregnant women, and assumptions about what choices a pregnant woman would make as between remunerative illegal activity and the safety of her unborn child. Depending on the evidence in a particular case, one might be prepared to draw such inferences if there was some evidence about the particular woman at issue, and about her values and choices. But I am not prepared to draw such inferences based only on the fact that Ms Belford was pregnant.
[147] Second, Prosecution counsel argue that because the evidence supports that Ms Belford and Mr. Khan were in a relationship, and living together in a relatively small apartment, they would know what the other was doing, and at least would know if one or the other of them went out to the shed. The Prosecution argument is that this supports at least joint possession.
[148] I reject this argument was well. It may be true for some couples that each member of the couple always knows what the other is doing. Reasonable people can differ on whether this is an ideal to strive for in a relationship. But human experience tells us that it is not always true. It is not particularly unusual for one member of a couple to do things without knowledge of the other member of the couple. It depends on the couple. It depends on the activity. Thus, I am not prepared to draw the inference that because they were in a relationship, there must have been at least joint possession.
[149] I have considered as well that it was a relatively small apartment (a conclusion I base on the video taken at the time of the search, and the agreed statement of facts). But it was not so small that it leads me to conclude that as occupants of the apartment, Mr. Khan and Ms Belford would necessarily know all of the activities the other was engaged in. Common sense and experience tells us that is not true of all couples for all activities.
[150] Third, the Prosecution argues that the value of the drugs is such that it speaks to both members of the couple knowing about the drugs and to joint possession.
[151] I reject this argument. I find that it does not assist me in deciding between the reasonable inferences of sole possession by Mr. Khan, joint possession with Ms Belford, or sole possession by Ms Belford. The value of the drugs is helpful to rule out a random stranger putting the drugs in the shed. But the risk of drugs of a significant value being found if the owner was a random stranger is not the same as the risk of them being found by one’s common law spouse. I am not suggesting there is no risk that a common law spouse would dispose of drugs or contact police if they found illicit drugs they were not aware of, but the risk is significantly different.
[152] Finally, the Prosecution relies on two cases where trial judges found that in the absence of a defendant testifying, the evidence was sufficient to find that constructive possession was proven beyond a reasonable doubt: R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Jenner, 2005 MBCA 44.
[153] I have reviewed those cases. In my view they are distinguishable from the case before me. In each of those cases, there was evidence that connected the drugs more specifically to the defendant, such that in the absence of contradictory evidence, the trial judge found that possession was proven beyond a reasonable doubt. In LePage, the defendant’s fingerprints were found on the bag containing a controlled substance (see Lepage at paras. 3, 11, 19-30). In Jenner, the controlled substance was found in a storage locker which was connected only to the defendant (see Jenner at paras. 2-11, 15, 21). In Jenner there was no evidence of a second occupant of the locker, as there is of the home in this case.
[154] Prosecution counsel also argues that they can prove Mr. Khan was in possession based on willful blindness. I reject this argument.
[155] Willful blindness requires that a defendant at some point became aware of the need for some inquiry, and declined to make the inquiry because he did not wish to know the truth: R. v. Sansregret, [1985] 1 S.C.R. 579. The evidence before the court in this case is that the drugs were found the shed in the backyard in a bag for a folding chair. The money was found in a closet organizer in the closet in the baby’s room. They were not in plain view. There is no evidence that Mr. Khan actually saw the items and chose not to inquire further. Nor is there any other evidence that he knew something that would have made him aware of the need for further inquiry, and he then declined to inquire. In my view, the Prosecution case stands or falls on proving actual sole possession or joint possession by Mr. Khan. There is no basis to find willful blindness on the record before me.
[156] The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.
[157] On the record before me, I am not satisfied beyond a reasonable doubt that the Prosecution case proves that Mr. Khan was in possession of the drugs and/or the money either alone, or jointly with Ms Belford. I am not satisfied that either of these inferences are the only reasonable inferences available on the evidence.
[158] A third reasonable inference which is available on the record before me is that Ms Belford was in sole possession of the drugs and/or the money. I am not suggesting that this inference is more probable than the inferences that Mr. Khan was in sole possession, or that he was in joint possession with Ms Belford. But the inference that Ms Belford was in sole possession is a reasonable inference on the record before me, and is not speculative.
[159] Detective Fraser testified that the belief of the police that Mr. Khan was in possession, which led them to charge Mr. Khan and not Ms Belford, was based on something in the information from the confidential informant which supported the search warrant. However, none of that information is in evidence before me. The police were, of course, entitled to rely upon the confidential informant information both in obtaining the search warrant, and in deciding they had reasonable and probable grounds to charge Mr. Khan once the drugs and money were found. But the Prosecution’s case at trial must be proved with evidence capable of proving beyond a reasonable doubt that Mr. Khan possessed the drugs and/or money either alone or jointly. For the reasons I have explained, I find it fails to do so.
[160] For these reasons, I find that the Prosecution case fails to satisfy me beyond a reasonable doubt that Mr. Khan is guilty of either count. As indicated at the outset, I found Mr. Khan not guilty of both counts on May 24, 2019.
[161] I reiterate my thanks to counsel for their assistance in presenting the applications, and during the trial.
Justice J. Copeland Released: June 10, 2019
Court File No.: CR-18-90000128-0000 Date: 2019-06-10 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Talel Khan
Reasons on Applications and for Judgment Justice J. Copeland Released: June 10, 2019
Footnotes
[1] Whether Mr. Khan was a regular occupant of the unit is contested in the trial proper. It does not matter for the s. 10(b) issues. I explain below my reasons for finding in relation to the merits of the charges that the evidence does support a factual finding that Mr. Khan was an occupant of the unit.
[2] The time of 3:05 comes from the agreed statement of facts filed as Exhibit #1, and the evidence of most of the officers. There is some inconsistency between this time and Detective Fraser’s evidence that the residence was turned over to them by the ETF at 3:20 a.m. Detectives McCabe, Bhogal and Berry testified the residence was turned over to the drug squad at 3:05 a.m. In light of the agreed statement of facts, and that most of the drug squad officers recall 3:05 a.m. as the time they went in, I accept that time as correct. But whether the drug squad entered at 3:05 or 3:20 a.m. would not affect my analysis, given the overall delay in implementing the right to counsel in this case.
[3] Detective Fraser expressed concern in his evidence that a person could overdoes on fentanyl just by touching it. According to Detective Margetson, this belief is incorrect, although it was held by many officers when fentanyl first arrived in Toronto’s streets. According to Detective Margetson, fentanyl in powder form cannot be ingested into the body through the skin. It must be injected, smoked, or ingested by the mouth or mucus membranes (e.g. nasal inhalation).
[4] The nik test, contrary to the later Health Canada testing, tested positive for cocaine.
[5] I cannot assess the ultimate impact of the exclusion of the statement on the outcome of the trial, as I do not know if Mr. Khan’s decision not to call a defence would have been the same had the statement been admitted into evidence.