COURT FILE NO.: CR-17-10000831-0000
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAL SINGH FERMAH
Defendant
E. Marrocco, for the Crown
N. Kelsey and M. Mattis, for the Defendant
HEARD: November 14, 2018
NOTICE
The reasons set forth below have been redacted to protect and preserve the confidential source privilege. The complete non-redacted reasons have been placed in the file in a sealed packet, which is not to be opened except pursuant to further order of this Court or the Court of Appeal.
MOLLOY J.:
REASONS FOR DECISION
A. INTRODUCTION
[1] Acting on information from a confidential informer (“CI”),[^1] Toronto police obtained a search warrant for an apartment they believed to be occupied by the defendant Tal Singh Fermah and his wife. The officers searching the apartment pursuant to the warrant found a lockbox inside a storage bin in the closet of the couple’s bedroom. Inside the lockbox was a Glock pistol, two magazines containing ammunition, a weigh scale, a box of small baggies, and 111 grams of heroin. As a result, Mr. Fermah was charged with possession of a restricted firearm, together with readily accessible ammunition, and possession of heroin for the purposes of trafficking.
[2] At the outset of trial, Mr. Fermah applied to exclude the evidence obtained from the search on the grounds that the Information to Obtain (“ITO”) failed to disclose a proper basis upon which the search warrant could be issued. The form of the ITO disclosed to the defence was heavily redacted to remove information that the Crown alleged would tend to reveal the identity of the CI. The Crown conceded that the ITO, in its redacted state, did not disclose reasonable and probable grounds and could not, on its face, withstand the Charter challenge. The matter proceeded before me as a “Step 6 Garofoli” with disclosure of the original ITO to me, but not to the defence, and a judicial summary of the content of the ITO being provided to the defence.
[3] The defence took the position that the judicial summary was not adequate for them to make informed submissions and also sought leave to cross-examine the affiant of the ITO.
[4] I made two additions to the judicial summary. After hearing argument on the preliminary issues, I ruled that the judicial summary was adequate for purposes of the defence Charter motion and that the defence had failed to establish a proper basis for cross-examining the affiant. Following argument of the Charter application itself, I ruled that the search warrant was validly issued, and that, even if I had found a breach of s. 8, I would have admitted the evidence under s. 24(2) of the Charter. I advised that my written reasons for this decision would follow, and the trial then proceeded.
[5] The evidence at trial consisted entirely of the testimony of police officers who arrested Mr. Fermah and transported him to the police station and evidence as to what was found in the apartment searched pursuant to the search warrant, as well as in the scout car after Mr. Fermah was removed from it. Based on this evidence I am satisfied beyond a reasonable doubt that Mr. Fermah is guilty on all counts. He lived in and had control of the apartment and its contents. Further he had knowledge and control of the lockbox and its contents, which puts him in possession of the heroin, firearm and ammunition. I am satisfied that the heroin in the lockbox was possessed for the purposes of trafficking. Finally, I am also satisfied that the heroin found in the scout car after Mr. Fermah was removed from it was put there by Mr. Fermah. He is therefore guilty of possession of that heroin as well. However, I have a reasonable doubt as to whether that possession was for the purposes of trafficking. My detailed reasons for these findings are set out below.
B. GAROFOLI: RELEVANT LEGAL PRINCIPLES
[6] There is no issue between counsel as to the relevant legal principles – counsel differ only on the application of those principles to the case before me.
[7] The test is well-settled. Search warrants are presumptively valid. The defendant bears the onus of demonstrating on a balance of probabilities that s. 8 of the Charter has been breached because the search warrant was invalid. The question on review is whether there was sufficient credible and reliable evidence before the justice of the peace, which could enable him to find reasonable and probable grounds that an offence had been committed and that evidence of that offence would be found at the specified place and time. As the reviewing judge, I must not substitute my own view for that of the justice of the peace who issued the warrant. If, based on the record before the justice of the peace, I am satisfied that he could have issued the warrant, I must not interfere. If there is some evidence upon which process could have been issued, the test is met.[^2]
[8] Reasonable and probable grounds refers to a credibly-based probability or reasonable probability. It is more than a suspicion or hunch, but less than proof beyond a reasonable doubt, prima facie case, or balance of probabilities.[^3]
[9] Where, as here, the reasonable grounds are based largely on a confidential source, the reviewing court must have regard to the reliability of that source with regard to three criteria: (1) whether the information is compelling; (2) whether the source is credible; and (3) whether the information is corroborated through independent investigation.[^4]
[10] In considering whether the source information is compelling, the reviewing court will take into account if the CI was providing first-hand information, as opposed to hearsay or rumour. The greater the level of detail provided, the more compelling the information will be. It is also relevant to consider whether the information is specific and precise, as opposed to commonplace and likely known to many. The currency of the information is also important, with stale information about activities in the past being less compelling than recent conduct.[^5]
[11] In considering whether the source is credible, the court will consider the track record of the confidential informer, whether the informer has been registered with the police and whether information provided in the past has proven to be accurate. It is also important to consider any criminal record of the informer, particularly for crimes of dishonesty, and whether the informer is entrenched in a criminal lifestyle. The motivation of the informer in providing the information is also a factor, particularly where the benefit flowing to the informer is not conditional on the accuracy of the information provided.[^6]
[12] The reviewing court will also consider whether the police have conducted an investigation and corroborated any of the information provided by the informer. Corroboration of commonplace details or innocent conduct will be less persuasive than corroboration of more specific or “inside” information. However, the police are not required to corroborate the very criminality alleged by the informer.[^7]
[13] The issue of reliability is to be approached based on the totality of the circumstances. The three criteria from Debot are not watertight compartments to be considered in isolation. Weaknesses in one area can be offset against strengths in another.[^8]
[14] In its landmark decision in R. v. Garofoli, the Supreme Court of Canada set out the procedure to be followed when a judicial authorization is based on information from a confidential informer. In such cases, the trial judge is required to give effect to the right of the accused to know the full case against him, while at the same time protecting the confidential informer privilege and ensuring no information is disclosed that would reveal the informer’s identity. At step 6, the final step in the process, when the redacted version of the supporting material cannot support issuance of the warrant, the Crown may seek to have the excised material considered by the trial judge, as happened before me. In describing the test at that stage, the Court held:
The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.[^9]
[15] The Supreme Court of Canada’s decision in Garofoli also provided for a more expansive, but not unlimited, right to cross-examine the affiant on the affidavit filed in support of the application for judicial authorization. Cross-examination is not permitted as of right; leave must be obtained. Leave should only be granted where “cross-examination is necessary to enable the accused to make full answer and defence,” with the onus on the defence to show that “cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds.”[^10] When a trial judge exercises her discretion to permit cross-examination, the only questions that should be permitted are those directed to establishing that there was no basis upon which the authorization (or in this case, search warrant) could have been issued.
C. THE PRELIMINARY ISSUES
(i) The Judicial Summary
[16] The main body of the ITO contains background about Mr. Fermah and his wife, Seerat Gurm, information about the apartment where they were living (Unit 2007 at 64 Bramalea Rd.), and the car associated with them (a white Volkswagen Jetta with the license plate CAST354). It contains no information about any illegal activity and no basis for believing there could be a firearm in the subject apartment. The substance of the officer’s stated reasonable and probable grounds were set out in Appendix D of the ITO, all of which related to information received from the CI. Appendix D was so heavily redacted as to be incomprehensible.
[17] The Crown conceded that the redacted ITO did not disclose reasonable and probable grounds and provided a proposed judicial summary of the redacted material. Armed with the unredacted ITO and the Crown’s proposed summary, I considered whether additional information could be provided to the defence without risking disclosure of the identity of the CI. I suggested four additions to the draft judicial summary.
(i) The judicial summary states that the ITO discloses the date upon which the CI spoke to the handler and provided information, and that this date was within 90 days of Mr. Fermah’s arrest. I suggested adding that the ITO does not disclose the precise date that the CI obtained the information he provided to the handler, but that the time frame within which that would have occurred was discernible from the information.
(ii) The CI had provided a physical description of Mr. Fermah, part of which was disclosed, specifically that he was “East Indian, 30 years old, 5’7”, thin build.” I suggested also adding that the CI had said Mr. Fermah had [redacted].
(iii) The judicial summary of paragraphs 16-29 stated that the CI had disclosed “specific personal information in relation to Mr. Fermah, including information about a location and a Volkswagen.” I suggested adding Mr. Fermah’s background to the examples of what the CI had disclosed.
(iv) In the same section, I suggested adding that particulars of [redacted] had been disclosed by the CI.
[18] I provided these suggested changes to the Crown in writing and heard submissions in open court, although in cryptic language so as not to divulge the particulars of what I had proposed. The Crown agreed that the information in subparagraphs (i) and (iii) above could be provided. Based on these additions, the defence would know that the justice of the peace was aware of a general time frame, but not the precise date, when the information had been obtained by the CI, and also would have known that some particulars of Mr. Fermah’s background had been provided by the CI.
[19] The Crown objected to disclosing that the CI described Mr. Fermah [redacted] which could in turn risk revealing the identity of the CI. I agreed that this was a reasonable concern. In any event, [redacted] added little to the particularity of the information provided by the CI, given that he had identified Mr. Fermah to his handler in a Facebook posting.
[20] The Crown also objected to disclosing that the CI had provided information about [redacted] on similar grounds, the concern being that this would narrow down the pool of persons that would include the CI. It is hard for me to know whether this would be the case. However, the information would provide little, if any, assistance to the defence in advancing its argument on the Charter motion. When weighed against the risk of breaching informer privilege, I find the potential prejudice far outweighs any benefit to the defence from disclosure. I therefore did not add this particular to the judicial summary.
(ii) Leave to Cross-Examine and Sufficiency of the Summary
[21] Counsel for Mr. Fermah argued that the judicial summary was insufficient for the defence to make an informed argument as to the validity of the warrant. She pointed to a number of inadequacies in the summary and sought leave to cross-examine the affiant on those points.
The Handler
[22] The defence initially sought disclosure of the name of the CI’s handler. The handler was another police officer and the name of that officer and the region in which that officer worked were provided in the ITO, but redacted. I agree with the Crown that this particular information could lead to identification of the CI and is not necessary for the defence to advance its argument on the application to exclude the evidence. The defence also sought particulars with respect to the handler, specifically whether that officer had training as a handler and whether that officer has ever been the subject of disciplinary proceedings. While not necessarily accepting that this information was required, the Crown agreed to provide it voluntarily. Accordingly, the Crown advised that the handler has never been the subject of disciplinary proceedings and had the prerequisite training to be a handler, which training was provided by the relevant police service.
The Affiant
[23] The defence sought to cross-examine the affiant as to his practice in writing ITOs, in particular whether he used a template or boilerplate language, and whether he understood his duty to make full and fair disclosure. These issues do not relate to the preconditions for issuance of the warrant. To the extent some of the ITO contained boilerplate type language, this was obvious on the face of the ITO. Beyond that, the drafting style of the affiant does not assist in understanding whether reasonable and probable grounds have been set out. There is nothing to suggest that the affiant failed to understand his duty to disclose all information, including that which could be seen as having a negative impact. In the portion of Appendix D that was not redacted, it is apparent from the subject headings used that the affiant disclosed any negative features of the CI. The defence has failed to establish a proper basis for cross-examination on these issues.
Information about the CI
[24] The defence objected that there was insufficient information about the CI to make meaningful submissions about his reliability. I disagree. The judicial summary advised that the ITO discloses whether or not the CI has a criminal record or outstanding charges, and indicates the nature of any such record/charges. In my view, this is sufficient to enable the accused to make submissions, in the alternative, as to how the nature of any such record of charges should be assessed. The defence argued that they were entitled to know, in particular, details of any crimes of dishonesty. I agree with the Crown’s submission that disclosure of the nature and extent of any criminal record or pending charges could lead to discovery of the identity of the CI. If there were crimes of dishonesty, they were disclosed in the ITO. That is sufficient for purposes of argument. The defence submitted that cross-examination was required to determine the type of lifestyle the CI had and whether he had mental health issues. [redacted]. The police are not required to make inquiries into the mental health history of every person who supplies information to them. That would be an unwarranted invasion of privacy. There is nothing in the circumstances to suggest the need for any such inquiry. This would be no more than a fishing expedition and leave to cross-examine on that point is denied.
[25] The exact motivation of the CI was redacted. However, full particulars of the motivation were provided in the ITO. In the judicial summary, the defence was advised that: the motivation was disclosed as being self-interest and the possibility of a benefit; the CI has not yet received consideration; and, the CI was advised that no benefit would be received unless the information led to results. The defence does not need to know the precise details of the benefit the CI hoped to receive. It is sufficient for the defence to know that the CI was motivated to obtain a benefit in exchange for information, and also that he knew he would not receive that benefit if the information provided did not pan out.
[26] Defence counsel also sought to elicit information about how the CI identified Mr. Fermah, in particular whether he knew his name and his exact address, or whether he was only able to provide approximate information. Revealing such information could unduly narrow the pool of possible informants and therefore cannot be disclosed. The level of specificity of the information would have been known to the justice of the peace and would be a factor to be taken into account as part of considering whether the information was compelling. This is a concept that the defence can argue without needing to know the specific information disclosed to the justice of the peace.
Compelling Nature of Particulars
[27] The defence argued that they needed to know the specifics of the criminal activity described by the CI and how the CI got this information. It is correct that the specifics of the criminal conduct described by the CI are not disclosed in the judicial summary, nor does the summary state the basis of the CI’s information. However, the summary advises the defence that the ITO discloses information in relation to criminal activity and “discloses whether the information was first or second hand, or a combination.” The defence submitted that without knowing the level of specificity of information provided (such as the colour of the firearm or its specific location), it would not be possible to make meaningful submissions about the extent to which corroboration was needed to balance the absence of compelling details. I disagree. The defence is able to make submissions in the alternative as to the fact that more corroboration is needed if the information provided by the CI was vague or not firsthand.
Corroboration
[28] The Crown disclosed that the corroborative details provided as a result of the police investigation did not include any corroboration of the information about criminal activity provided by the CI. It would not be possible to list every piece of corroborative evidence without at the same time disclosing the information provided by the CI which was then corroborated. It is not necessary for the defence to know this level of detail. It is significant that the criminal activity itself was not corroborated independently.
Conclusion
[29] In my view, a sufficient level of detail was provided in the judicial summary to enable the defence to make intelligible and meaningful submissions on the application. The cross-examination sought was either impermissible because it would carry with it the risk of exposing the CI or was not related to the preconditions for the issuance of the warrant. Accordingly, I did not grant leave to cross-examine and the application proceeded based on the judicial summary filed and the additional details provided by the Crown in the course of argument.
(iii) Validity of the Warrant
[30] As discussed above, in determining whether the ITO discloses sufficient grounds to support the search warrant, it is relevant to consider whether the CI is a credible source of information, whether the information provided is compelling, and whether there is corroboration of the information provided.
Credibility
[31] The defence argues that the level of credibility of this CI is low and that this increases the level of scrutiny required for the other two criteria. I agree that a weakness in one area will need to be offset by strengths somewhere else. [redacted].
[32] The CI was registered and handled by a police officer with no disciplinary record who was properly trained to deal with the CI. The CI was motivated by self-interest, but knew that no benefit would be obtained if his information did not lead to results. The defence relies on the decision of Allen J. in R. v. Castillo[^11] in which a CI was found to be lacking in credibility in circumstances where he was acting in self-interest even though he had been warned he would not receive the hoped for benefit unless his information yielded results. However, in that case this particular aspect of the CI was found to support his credibility. [redacted].
[33] [redacted].
[34] In all of these circumstances, there was evidence before the justice of the peace from which he could conclude that the CI was a reliable source of information.
Compelling
[35] I agree with the submission of defence counsel that general information as to details about Mr. Fermah known to many people would not be compelling. Further, vague information about criminal activity would lack the requisite degree of particularity to be considered compelling. If the information provided by the CI included specific details, that would be considered a positive feature of the CI’s information and could be used to overcome weaknesses in other areas, if those existed.
[36] One weakness I raised during argument is that the ITO does not provide a specific date or dates upon which the CI was said to have himself obtained the information about criminal activity that he then turned over to his handler. However, I pointed out that the time range of when that must have occurred would have been known to the justice of the peace. At the time of the argument, I based my observation on the portion of the ITO which stated that the CI provided the information to the handler on [redacted]. I considered [redacted] to have provided some level of specificity with respect to how current the criminal activity was, but not much. Subsequently, having reviewed the unredacted ITO again in the course of writing these reasons, I note that the time frame within which the CI obtained this information is pinpointed much more precisely than I had initially realized. [redacted].
[37] [redacted].
[38] [redacted].
Corroboration
[39] The police did not obtain corroborating evidence with respect to any criminal activity reported by the CI. However, it is often the case that police investigation and surveillance will be unsuccessful in confirming the criminal activity at the heart of the CI’s tip. While corroboration of some aspect of the purported criminality is preferable, the absence of such corroboration is not fatal to the validity of the warrant.[^12] In R. v. Rocha, the Ontario Court of Appeal held:
The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required. In a very short judgment in R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66, the Supreme Court of Canada said the following [at para. 2]:
The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.
In the Alberta Court of Appeal, the majority described the independent confirmation as "the police independently confirmed a number of details, including the identity of the appellant and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle": R. v. Caissey, [2007] A.J. No. 1342, 2007 ABCA 380, at para. 25. In that case, the informer claimed to have seen a large [page 752] quantity of drugs in the appellant's apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.[^13]
[40] In the case before me, the ITO did not set out any corroborative evidence of criminal activity. However, [redacted].
Conclusion
[41] The unredacted ITO provided information from which the justice of the peace could conclude that the test in Debot was met, in that: [redacted]. I am satisfied that there was sufficient material before the justice of the peace from which he could conclude that there were reasonable and probable grounds to believe Mr. Fermah to be in possession of a firearm and that evidence of such would likely be found in his apartment. The accused has failed to discharge his onus on this application. I find the search warrant to have been validly issued.
(iv) Section 24(2) Analysis
[42] Even if I had found some weakness in the ITO and declared the search warrant invalid, I would still have admitted the evidence under s. 24(2) of the Charter, applying the criteria established by the Supreme Court of Canada in R. v. Grant.[^14]
[43] The police in this case were acting in good faith based on information from a CI they believed to be reliable. They conducted an investigation to confirm what they could of the information provided by the CI. They applied for and obtained a search warrant. They made full and fair disclosure of the strengths and weaknesses of the information they had in the ITO. They were acting in what they believed to be their role to protect the public in the context of information about an illegal firearm. In that sense, the Charter-infringing conduct would not be on the serious end of the scale. The impact on privacy rights, however, does tip the scales in the other direction. It is well-recognized that an invasion into one’s personal living space is high on the scale of the seriousness of the breach on the rights of the accused because of the high expectation of privacy in one’s home. Finally, it must be noted that this is tangible and reliable evidence – a large amount of heroin together with an illegal firearm and ammunition. There is a high societal interest in having firearms cases adjudicated on their merits. If the items seized were excluded from evidence in the trial, the Crown would have no case. All charges would be dismissed. In my view, the exclusion of the evidence in all of the circumstances of this case would tend to bring the justice system into disrepute.
[44] Therefore, I would not have excluded the evidence under s. 24(2) of the Charter even if I had found a s. 8 breach.
(v) The Substantive Charges
The Charges
[45] During the search of Mr. Fermah’s bedroom, the police found a lockbox which contained 111.24 grams of heroin, a Glock handgun, two magazines containing ammunition, a weigh scale and a box of small baggies suitable for packaging. In connection with the Glock, Mr. Fermah is charged with possession of a restricted forearm together with readily accessible ammunition (Count 1) and possession of a restricted firearm (Count 2).
[46] In connection with the heroin, Mr. Fermah is charged with possession for the purposes of trafficking.
[47] The Glock is admitted to meet the definition of a restricted firearm and it was in the same container with the ammunition. It is also admitted that Mr. Fermah had no lawful basis to be in possession of the Glock. If he was in possession of the Glock, then the offences in Counts 1 and 2 are made out.
[48] The same lockbox contained 111.24 grams of a substance, which tested as being heroin mixed with caffeine. This amount of heroin would produce 556 individual hits and is not consistent with personal use. If the heroin was sold in one piece, its value would range from $13,328.00 to $17,640.00. If broken down into individual hits valued at $40 to $60 each and sold at the street level, the value of the heroin would be $22,240.00. The heroin was in the same container with a quantity of baggies, a weigh scale and an illegal firearm with ammunition, all of which support the inference of trafficking. There was no personal drug paraphernalia found anywhere in the apartment. The evidence is overwhelming that the heroin was possessed for the purpose of trafficking. The only question is whether Mr. Fermah was in possession of it. If he was, then he is guilty of Count 3.
[49] Count 4 of the indictment charges Mr. Fermah with possession of an additional quantity of heroin for the purpose of trafficking. This heroin was found secreted in the back seat of the scout car where Mr. Fermah was placed upon his arrest and in which he was transported to the police station. If I accept the evidence of the police officer who had charge of that scout car, only Mr. Fermah could have put the heroin there and he would be guilty of possession. There is an additional issue as to whether he possessed that heroin for the purposes of trafficking, given that the quantity was 1.4 grams.
Possession of the Lockbox
[50] The evidence is overwhelming that Mr. Fermah lived in the subject apartment, Unit 2007, along with his wife, Seerat Gurm. A lease for the unit was found in the apartment, and was confirmed with the landlord to be current. Ms. Gurm is shown as the tenant but Mr. Fermah is specifically listed as an authorized permanent regular occupant. There were many documents as well as mail, photographs and mementos linking both of them to the apartment. Both male and female clothing and important identification for both of them were present in the apartment. Police surveillance confirmed both of them entering Unit 2007 on January 5, 2017 and leaving the building together on the morning of January 6, 2017. Mr. Fermah had keys to the apartment building and to Unit 2007 on his person at the time of his arrest. Unit 2007 has two bedrooms, but only one of them was being used as such. The second bedroom was being used for storage. That storage room had a free-standing closet in addition to the built-in closet. Inside that closet was a quantity of clothing and a locked lockbox. One of the keys on Mr. Fermah’s key ring opened the lockbox. It contained important documents including passports in Mr. Fermah’s name and the Record of Marriage for his marriage to Ms. Gurm.
[51] It is crystal clear that Mr. Fermah lived in the apartment with his wife. There was only one bed. The bathroom next to that master bedroom contained both male and female personal items. There is no evidence whatsoever that anybody else lived in that apartment. The only rational inference from the evidence is that Mr. Fermah lived in the apartment and had control over it and its contents. The fact that Ms. Gurm also lived there and had control over the apartment and its contents does not change that fact.
[52] However, before Mr. Fermah can be found to be in possession of items not in plain sight in the apartment, such as the heroin and firearm in the lockbox, I would need to be satisfied beyond a reasonable doubt that he had knowledge of those items being there. There is no direct evidence that he had such knowledge. The question is whether the circumstantial evidence supports drawing the inference of knowledge. In a case based solely on circumstantial evidence, I cannot draw an inference of guilt if there is another rational inference available that is inconsistent with guilt. If there are two or more inferences, and at least one of them is consistent with an explanation other than the guilt of the accused, it does not matter which is the more likely inference. I am required to acquit.[^15]
[53] It is only inferences that are rational and logical in all of the circumstances that can be drawn. Speculation or conjecture is not enough to give rise to an inference inconsistent with guilt. However, a reasonable doubt based on circumstantial evidence can arise from the absence of evidence.[^16]
[54] The lockbox containing the heroin and firearm was inside a larger Tupperware storage bin which was sitting in plain view on the floor of the closet in the master bedroom. There was male clothing in the closet, which I infer to be that of Mr. Fermah because he was the only male living in the apartment. There were a few items of material on top of the Tupperware bin that appeared to the officers to be female, likely a sari. Inside the bin and to a depth of about one-quarter of the way down the bin, there was other material that appeared to be a sari or scarf. The lockbox was under those items. The rest of the bin was filled with various items including a number of electrical cords, DVDs, and some documents. The documents included some items of mail addressed to Mr. Fermah and a Rogers bill addressed to him, although they were not recent. There were also a couple of plastic cards about the size of a credit card, one of which was a Fallsview Casino card and the other was unidentified. The officer who conducted the search testified that he examined these items but did not note whether there were any names on them. He also testified that if there had been names other than Mr. Fermah or Ms. Gurm he would have noted it. He maintained that the only documents he saw anywhere belonged to one or both of Mr. Fermah and Ms. Gurm. Other officers testified to the same effect. I believe the officer on this point. I attach no significance to these two plastic cards.
[55] The lockbox is similar in nature to the lockbox in the storage room over which Mr. Fermah clearly had knowledge and control because it contained his important documents and he had a key to it on his person. The key to the lockbox containing the gun and heroin was not on Mr. Fermah’s key ring and the officers did not find it anywhere in the apartment. The defence argues that the absence of the key gives rise to a reasonable doubt. The defence further argues that I should draw the inference that Mr. Fermah was the type of person to keep important keys on his key ring and that if he had control over this lockbox he would have had the key to it with him. I do not agree that these are rational or logical inferences. There could be all kinds of reasons for not having the key to this box on the ring with the other keys, and the fact that such a small item was not found in the apartment does not give rise to the rational inference that it wasn’t there because it was with some mythical third party who actually controlled the lockbox and its contents.
[56] These items were deliberately locked up and hidden in a bin in the master bedroom. Nobody else lived there. It makes no sense that anyone other than Mr. Fermah or Ms. Gurm would have secreted these items in that manner and in that location. It is logical to infer that Mr. Fermah had control of the lockbox and knowledge of its contents, given that it was in his closet and in a bin with items belonging to him. It would also be logical to infer that since Ms. Gurm also had access to the bin, she may also have had knowledge and control over its contents. However, that does not negate Mr. Fermah having knowledge and control. They could have been in joint possession – that is entirely possible. The inference of Ms. Gurm’s knowledge and control would only be inconsistent with Mr. Fermah’s guilt if there was an available logical inference that she had asserted exclusive possession over the lockbox and was in fact hiding it from Mr. Fermah.
[57] In my view that is simply not a logical or rational inference on the whole of the circumstances. This was Mr. Fermah’s closet with his clothes in it. The bin contained some of his items, which means he had access to it at least at some point. It also contained useful household items such as sheets, DVDs and electrical cords. It was placed directly below his clothing and was clearly visible. He could look inside it at any time. If Ms. Gurm was seeking to hide something from her husband, it would make no sense whatsoever to put it in this location, particularly since most of her clothing was in the storage room and therefore less likely to be disturbed by him. The storage room also contained a number of bins that would have made a far better hiding spot.
[58] I do not agree with the submission of the defence that the mere absence of a key to this lockbox creates a reasonable doubt. I also do not agree that the decision of the Court of Appeal in R. v. Yowfoo[^17] is determinative of this issue. In that case, the accused had been involved in drug trafficking with two associates. His associates had been arrested and a search of their homes yielded large quantities of cash and drugs. The police were also aware of another residence, which they believed to be a stash house. When the police arrived at that residence, they saw the accused’s car in the driveway. They watched and waited until the accused emerged carrying two large bags, which he put in his car. He was arrested, but in course of the struggle, managed to escape. The bags that he had been seen removing from the house contained a number of items consistent with drug trafficking. The police then searched the house and found it essentially empty except for a locked closet. Inside the closet were drugs and firearms worth up to $1.7 million. The accused had a key to the house on his person, and packaging for the brand of lock on the closet, but there was no evidence that he had a key for the closet itself. The accused was charged with possession of the items in the closet and convicted at trial. On appeal, this was reversed. However, this was not based solely on the fact that the accused did not have a key to the closet. Rather, the Court of Appeal held that there was a rational inference available that the accused knew about the arrest of his two associates and had gone to the stash house to remove evidence of their crimes. That being the case, it would be expected that he would remove the contents of the closet. The fact that he did not, gave rise to the inference that he either did not have access to the closet, or did not have knowledge of its contents. I do not see Yowfoo as standing for the proposition that there can never be an inference of knowledge and control over something inside a locked container unless the key is found on or connected to the accused. The operative fact in Yowfoo was the failure of the accused to clean out the incriminating material in the closet along with the other items he took. That is what gave rise to the competing inference that he did not know what was in the closet.[^18] There is nothing of that nature in the case before me.
[59] I would also distinguish the Court of Appeal decision in Bui relied upon by the defence. In that case, there was actual evidence of other people being in the house in question and of multiple persons being involved in the grow-op. In those circumstances, the Court held that the possibility of another person hiding the gun in the accused’s room without his knowledge could not be excluded. Again, those are not the facts in the case before me. Likewise, in R. v. Grey,[^19] other people had access to the apartment in which a cassette player with cocaine hidden inside it were found. The accused was in a relationship with the principal tenant of the apartment, stayed with her there several nights a week, and kept some clothing there. However, there was nothing beyond that connecting him to the cassette player or the drugs inside it. That is not the case before me. Mr. Fermah lived in the apartment. He had a direct connection to the Tupperware bin, which contained documents belonging to him, and which was stored in his personal closet. There was no evidence of strangers wandering in and out of that apartment and it would be fanciful to suggest that a random stranger would choose to store $22,000 worth of heroin and a gun in such a location without Mr. Fermah’s knowledge.
[60] Accordingly, I find Mr. Fermah had knowledge and control of the lockbox and its contents, which puts him in possession of the heroin and the Glock. He is guilty on Counts 1, 2 and 3 on the indictment. Counts 1 and 2 appear to be duplicative. I invite submissions from counsel as to whether one of those counts should be stayed pursuant to R. v. Kienapple.
The Heroin in the Scout Car
[61] On January 6, 2017, Det. Chant and Det. Harris, both officers with the Toronto Police Service, surreptitiously followed Mr. Fermah from his home to his place of employment. Upon learning that the search warrant had been signed, Det. Chant contacted Peel Regional Police and requested assistance in the form of an officer with a marked cruiser to take custody of Mr. Fermah after he was arrested.
[62] P.C. Stratham of the Peel Regional Police was assigned this duty. At that point, he had been a police officer for 3 ½ years. He arrived in his marked scout car at Mr. Fermah’s place of employment at 1:20 pm. Detectives Chant and Harris entered Mr. Fermah’s workplace at 1:33 pm. They were advised by workers on the ground floor that Mr. Fermah was in an office upstairs. They entered the upstairs office and placed Mr. Fermah under arrest. Mr. Fermah had no advance knowledge that they were coming and was taken by surprise when they entered his office. If he had any contraband on his person at that time, he would not have had an opportunity to dispose of it.
[63] Both detectives patted Mr. Fermah down at the time of his arrest and found nothing of interest. They also retrieved Mr. Fermah’s jacket and a pair of shoes from his office and searched those before giving them to him. Det. Harris seized a wallet, an iPhone and a set of keys from Mr. Fermah as a result of the search but did not recall where each item came from. At 1:40 they turned Mr. Fermah over to P.C. Stratham for transport to the apartment building. P.C. Stratham was asked to standby there with Mr. Fermah while the search of the apartment was underway.
[64] P.C. Stratham was working the 8:00 am to 8:00 pm shift. He testified that when he picked up his scout car at the beginning of his shift, he did a routine search of it, including removing the bottom seat in the back of the cruiser to make sure that nothing had been left there. He found nothing. He did not record this search in his notebook. He also testified that before he took control of Mr. Fermah, he again searched the back seat, just to be on the safe side, and again found nothing. Again, he made no note of doing this. Although Mr. Fermah had already been searched by the detectives, P.C. Stratham conducted his own pat-down search before putting Mr. Fermah in the scout car, and found nothing. Mr. Fermah was cuffed to the rear and placed in the back seat. It was a short drive to the apartment building. P.C. Stratham testified he simply waited with Mr. Fermah still in the car while the search was underway. He said he never left Mr. Fermah unattended. At one point, Mr. Fermah complained about one of the handcuffs being too tight and P.C. Stratham loosened it. At another point, Mr. Fermah requested a cigarette and P.C. Stratham retrieved a package of cigarettes from his property bag for him. He could not recall how Mr. Fermah was able to smoke with his hands cuffed behind him, but agreed that he might have held the cigarette for him.
[65] Det. Chant testified that after finding the heroin and gun in the lockbox in the apartment’s master bedroom, he went out to the scout car and placed Mr. Fermah under arrest for possession of the firearm and possession of heroin for the purpose of trafficking. He said that Mr. Fermah was anxious and asked for water and a cigarette, which he provided to him before he was transported to the station. He said that the arrest occurred at 2:38 p.m. and that P.C. Stratham was also there. He asked P.C. Stratham to transport Mr. Fermah to 23 Division in Toronto for booking.
[66] Det. Harris was also present when Mr. Fermah was being placed under arrest for the drugs and gun. He recalled Mr. Fermah asking for water and a cigarette. He thought that Mr. Fermah was sitting in the back seat of the cruiser with the door open and his feet out of the vehicle. It was also his recollection that the cuffs were left on Mr. Fermah when he was having the cigarette and water.
[67] P.C. Stratham confirmed being present when Det. Chant advised Mr. Fermah of the charges against him. He did not seem to recall the water and cigarette being provided at that point. However, he did transport Mr. Fermah to 23 Division, leaving the apartment building at 2:51 pm. They arrived at 23 Division at 3:07 pm and proceeded through booking at 4:11 pm. Mr. Fermah was searched. Nothing was found. P.C. Stratham noted that Mr. Fermah was wearing at least two pairs of pants and more than one shirt.
[68] After depositing Mr. Fermah at 23 Division, P.C. Stratham returned to his regular duties, including attending at the scene of a car accident. He testified that his car was never left unlocked and unattended during this time, and nobody entered the back seat. At 7:11 pm, before going off shift, P.C. Stratham conducted another search of the back seat of his cruiser. Under the rear seat, on the driver side, he found a plastic bag containing a small amount of white powder, which later testing revealed to be 1.4 grams of heroin mixed with caffeine. P.C. Stratham immediately reported to Det. Chant at 23 Division the discovery of this substance that appeared to be heroin and noted it in his own notebook at 7:15 pm.
[69] P.C. Stratham was cross-examined vigorously about his failure to make a note of the first two searches he said he performed in the back seat of his cruiser, the first one at the beginning of his shift and the second before placing Mr. Fermah into the car. He was also cross-examined about the delay in doing the final search, rather than doing it immediately after removing Mr. Fermah from the car, and his failure to note that search until after he had spoken with Det. Chant. Obviously, it would have been preferable if P.C. Stratham had made a note of doing the earlier searches. However, the absence of such notes does not mean the events did not happen. I find P.C. Stratham’s evidence on this issue to be truthful and forthright. It would have been an easy matter for him to say that he left Mr. Fermah unattended for a period of time, or that he was not in cuffs for the entire time, or that he cuffed him in front for his comfort, or that he did not search him before putting him in the car. If he was manufacturing his evidence about searching the back seat before Mr. Fermah got in, I would expect him to make the story more plausible by changing some of these other details. He did not. He was clearly not pleased with himself for not making a note of the previous searches, but they did not become relevant in his mind until the end of the shift when he found the contraband. I accept that it is a normal part of police procedure to do a search of the cruiser at the beginning and end of a shift and that officers might be less than careful about recording these mechanical, routine events. However, I am satisfied that this officer was telling the truth when he said that: (1) he searched the car before Mr. Fermah was put in the back seat and nothing was there; (2) after Mr. Fermah was removed from the car, he searched again and found the heroin; and, (3) nobody else was ever in the back seat between those times. The logical conclusion flowing from accepting the officer’s evidence on this point is that Mr. Fermah had the heroin somewhere on his person at the time of his arrest and somehow managed to dump it in the back seat during the several hours he was in the car. I am reinforced in that view by the extraordinary coincidence that what was found in the back seat of the scout car was heroin mixed with caffeine and what was found in the lockbox in Mr. Fermah’s closet was heroin mixed with caffeine.
[70] In my view, it is a logical inference from this that the heroin came from the same batch, or at least the same source, as was found in Mr. Fermah’s closet. I do not consider it fatal that the Crown did not require further testing of these substances to show precise percentages of these components and to match one to the other, not does it cause me to have a reasonable doubt that the heroin in the scout car came from Mr. Fermah.
[71] I decline, however, to take the next step urged by the Crown. I am not satisfied beyond a reasonable doubt that Mr. Fermah had the 1.4 grams of heroin on his person that day for the purpose of trafficking. I recognize that there was no personal use paraphernalia found in the apartment, nor on Mr. Fermah’s person. However, he could have had such equipment in his office, or he could have been planning to use the heroin somewhere else later. The mere fact that Mr. Fermah had a large quantity of heroin in his apartment, which he intended to traffic, does not mean that every time he had heroin on his person, even in small quantities consistent with personal use, that was also for the purposes of trafficking. I therefore find Mr. Fermah not guilty of the offence of possession heroin for the purpose of trafficking as charged in Count 4, but guilty of the lesser included offence of possession of heroin.
MOLLOY J.
Released: January 30, 2019
COURT FILE NO.: CR-17-10000831-0000
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TAL SINGH FERMAH
REASONS FOR decision
(redacted)
Molloy J.
Released: January 30, 2019
[^1]: The information revealed to the defence does not disclose the gender of the CI. For ease of submissions, it was agreed at the outset to use the pronoun “he” in referring to the CI. The same procedure was used in referring to the CI’s handler, whose gender was also not disclosed. [^2]: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1456-1457, [Garofoli]; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Pires and R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. [^3]: R. v. McKenzie, 2016 ONSC 245, at para. 46, [McKenzie], citing Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at p. 250; R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7; R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 17, 21-23; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at paras. 37-38; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81; R. v. Boussoulas, 2014 ONSC 5542, 320 C.R.R. 64, at para. 21; and R. v. Grant, 2015 ONSC 1646, at paras. 90, 92. [^4]: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168, [Debot]. [^5]: R. v. Iyeke, 2016 ONSC 7120, at para. 21, [Iyeke]; and R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493, at paras. 16-17, 40, [Greaves-Bissesarsingh]. [^6]: Greaves-Bissesarsingh, ibid, at para. 37; McKenzie, supra note 2, at paras. 52-54. [^7]: Greaves-Bissesarsingh, ibid, at paras. 43-45; Iyeke, supra note 4, at paras. 12-16, 21; and R. v. MacDonald, 2012 ONCA 244, at paras. 20-24, [MacDonald]. [^8]: Iyeke, ibid, at paras. 11, 21; Greaves-Bissesarsingh, ibid, at paras. 37-39; and MacDonald, ibid, at paras. 7-8. [^9]: Garofoli, supra note 1, at p. 1461. See also: Greaves-Bissesarsingh, ibid and Iyeke, ibid. [^10]: Garofoli, ibid, at p. 1465. [^11]: R. v. Castillo, 2011 ONSC 3257. [^12]: R. v. Greave-Bissesarsingh**at paras. 43-45 [^13]: R. v. Rocha (2012), 112 O.R. (3d) 742, 2012 ONCA 707 at paras. 22-23. [^14]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. [^15]: R. v. Alexander, 2006 26380 (ONSC); R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193; R. v. Portillo (2003) 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont.C.A.); R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont.C.A.) at 444. [^16]: R. v. Bui, 2014 ONCA 614, paras. 28-36. [^17]: R. v. Yowfoo, 2013 ONCA 751 [^18]: Ibid, at paras. 13-14 [^19]: R. v. Grey (1996), 28 O.R. (3d) 417, 47 C.R. (4th)40, 1996 35 (C.A.).