R. v. Salvati, 2020 ONSC 5864

COURT FILE NO.: CR–19–100-0689

DATE: 20200929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GIANLUCA SALVATI

S. James, for the Crown

H. Gonzalez, for the Accused

HEARD: August 10, 11, 12, 13, 17 & 18, 2020

REASONS FOR JUDGMENT

P.J. Monahan J.

1Gianluca Salvati is charged with a number of offenses arising out of a police chase on November 4, 2018, as well as in connection with the execution of a search warrant issued under the Controlled Drugs and Substances Act (the “CDSA”) at a residence on November 5, 2018.

2For the reasons that follow, I am left with a reasonable doubt as to whether Mr. Salvati was the driver of the automobile that was involved in the police chase on November 4, 2018. I therefore acquit him of all charges relating to that incident.

3However, I am satisfied beyond a reasonable doubt that he was in possession of various controlled substances for the purpose of trafficking at the time of his arrest on November 5, 2018. I therefore find him guilty of most of the drug-related offenses with which he has been charged. I also find him guilty of having breached a term of a recognizance that was in effect at the time of his arrest.

Overview of the Case

a. The November 4, 2018 Police Chase

4On November 4, 2018, a team of Toronto police officers received instructions to arrest Mr. Salvati for breach of the terms of a recognizance. Plainclothes officers in three unmarked police vehicles set up surveillance in the area of his residence at 180 Rosethorn Avenue in Toronto, intending to arrest him on sight. There were also two marked police scout cars standing by in the vicinity to assist in the apprehension of Mr. Salvati.

5One of the officers conducting surveillance was Detective Constable Stuart Neill (“Neill”), who was parked just to the north of 180 Rosethorn Ave in an unmarked police vehicle. Shortly after 5 PM he received information on the police radio to the effect that Mr. Salvati had been observed leaving 180 Rosethorn, entering a blue Hyundai motor vehicle, and driving northbound on Rosethorn. When a blue Hyundai drove past him, Neill pulled out and followed. Neill saw a silhouette of the driver of the Hyundai as it drove past him but was not able to identify who was driving. He did not believe there were any other occupants of the vehicle apart from the driver.

6The other police vehicles in the area also began following the Hyundai. As the Hyundai turned north onto Weston Road, the police vehicles attempted to box it in and force it to a stop, so as to enable the officers to arrest Mr. Salvati. This manoeuvre was clearly depicted on the in-car cameras in the two police scout cars.

7As the Hyundai proceeded north on Weston Road, the driver of one of the unmarked police vehicles positioned himself immediately in front of the Hyundai and began slowing down. At the same time, one of the marked police scout cars drove up right behind the Hyundai and activated its emergency lights, while a second scout car pulled up to the left of the Hyundai.

8The police vehicles were able to force the Hyundai to stop. However, when the vehicles came to a stop there was a space between the unmarked police vehicle in front and the police scout car immediately to the left of the Hyundai. As police officers began exiting their vehicles with the intention of arresting Mr. Salvati, the blue Hyundai suddenly drove ahead through this space and sped off down a side road. A high-speed pursuit involving at least three of the police vehicles ensued for the next 2 to 3 minutes through a number of residential streets. However eventually the officers lost sight of the Hyundai and called off the chase.

9Later that evening Neill located the blue Hyundai abandoned in the parking lot of a nearby retail store. Neill inventoried the contents of the vehicle but there was nothing of particular interest to their investigation. The vehicle was subsequently towed.

10In addition to the testimony of Neill, the Court also heard the evidence of Detective Constable Kiryl Khatkevich (“Khatkevich”), who was in the front passenger seat of the police scout car which pulled up beside the Hyundai as it was being boxed in on Weston Road. Khatkevich had been shown a photograph of Mr. Salvati at a briefing held earlier on November 4, 2018. He had also heard the broadcast on the police radio indicating that Mr. Salvati had been observed getting into the blue Hyundai and driving away. As his vehicle pulled up beside the blue Hyundai, Khatkevich was able to observe the driver for about five seconds. Khatkevich described the driver as a white male in his 20s with short black hair. Based on the photograph he had been shown during the briefing, Khatkevich believed that the driver was Mr. Salvati.

b. Mr. Salvati’s arrest on November 5, 2018

11Following the unsuccessful attempt to apprehend Mr. Salvati on November 4, 2018, police obtained a CDSA search warrant for 180 Rosethorn Avenue. A team of police officers set up surveillance outside the residence on the afternoon of November 5, 2018. They had been instructed not to execute the warrant until such time as they were certain that Mr. Salvati was present inside the residence, for fear that Mr. Salvati would attempt to flee if approached outside the house.

12At about 4:50 PM, a black Hyundai motor vehicle drove up and parked in front of 180 Rosethorn Ave. There were three occupants, an unknown female who was driving, an unknown male in the front passenger seat, and Mr. Salvati in a rear passenger seat.

13The three occupants exited the black Hyundai and walked up the steps towards 180 Rosethorn. The unknown male entered the house, but Mr. Salvati and the unknown female stood outside on the front porch and appeared to be smoking. After a few minutes Mr. Salvati and the female entered the house. At 4:55 PM the police takedown was ordered and the police team entered the residence from the front and the rear, loudly announcing themselves as police officers.

14There were a total of seven occupants in the residence, including Mr. Salvati. Six of the occupants were on the main floor, while Mr. Salvati was upstairs.

15The first officer to encounter Mr. Salvati was Detective Constable Kyriakos Petrakis (“Petrakis”). When Petrakis entered the residence, he observed that other officers had already fanned out across the main floor. He therefore decided to run upstairs and secure the second floor of the house.

16When he was about two-thirds of the way up the stairs, he was able to see the landing on the second floor of the house. There were two bedrooms visible on the right-hand side of the second-floor landing, and a bathroom on the far side of the landing, directly across from Petrakis. (There were also two bedrooms on the left-hand side of the second floor, but these bedrooms were not visible from Petrakis’ vantage point on the stairs.) Petrakis observed a white male standing in the doorway of the bathroom facing him. It is acknowledged that this individual was Mr. Salvati.

17It appeared to Petrakis that Mr. Salvati was coming out of the bathroom. As Petrakis made eye contact with Mr. Salvati, Petrakis observed him turn and attempt to go back into the bathroom. Petrakis sprinted across the landing and grabbed hold of Mr. Salvati. There was a brief struggle, but Petrakis was able to take down Mr. Salvati onto the floor and arrest him. In the course of this struggle, Mr. Salvati’s head and shoulders fell into the doorway of one of the bedrooms on the right-hand side of the second-floor landing.

18A second police officer involved in the arrest of Mr. Salvati was Neill. Upon entering the house, Neill also observed other police officers securing the main floor and decided to go upstairs. When he was about two-thirds of the way up the stairs, he observed Petrakis and Salvati on the floor of the landing on the second floor. Although Mr. Salvati’s head and shoulders were slightly inside the first bedroom on the right-hand side, it appeared to Neill that Petrakis had control of Mr. Salvati. Neill therefore proceeded to clear two other bedrooms on the left-hand side of the second floor to ensure no one else was present.

19After ensuring that those two bedrooms were unoccupied, Neill assisted Petrakis in helping Mr. Salvati to his feet. Neill testified that Mr. Salvati’s belt was unbuckled. Neill did a patdown search of Mr. Salvati and located a bundle of Canadian currency folded with an elastic band in Mr. Salvati’s right front pocket. He handed the money to Petrakis. The money was subsequently counted and totalled $2180.

20Neill then did a search of one of the bedrooms on the left-hand side of the second floor. Finding nothing of interest in that bedroom he returned downstairs and assisted other officers in executing the search warrant.

21Neither Petrakis nor Neill went into the bathroom on the second floor of the house before heading back downstairs after arresting Mr. Silvati.

22Another of the officers involved in the execution of the search warrant on November 5, 2018 was Detective Constable Brian Sukhram (“Sukhram”). Sukhram was parked about 50 metres away from 180 Rosethorn and called for the takedown when he observed Mr. Silvati enter the house. When Sukhram entered the residence with the other officers, he initially detained a white male sitting on the sofa in the living room. Once the other occupants of the residence had been detained, Sukhram commenced a search of some of the rooms on the second floor of the house, including the second-floor bathroom. In that bathroom he found a clear Ziploc bag sitting on a small vanity close to the toilet. It contained a number of smaller clear baggies with what appeared to be powdered cocaine and crack cocaine, as well as a small digital scale. Sukhram also found a black Samsung phone sitting on the floor in the middle of the bathroom, together with a clear plastic phone case. After being photographed these items were turned over to Petrakis, who was the exhibits officer.

23Subsequent testing by Health Canada found that the Ziplock bag found on the vanity in the second-floor bathroom contained approximately 85 grams of powder cocaine, 52 grams of crack cocaine, and nine grams of fentanyl. Following a voir dire, Detective John Margetson (“Margetson”) of the Toronto police was qualified as an expert in the distribution, pricing, and sale of cocaine and fentanyl.¹ His evidence was that the street value of the drugs found in the second-floor bathroom was between approximately $9,680 and $20,600, depending on the manner in which it was packaged and sold. He further testified that this quantity of drugs, together with the digital scales found in Ziplock bag, was consistent with possession for the purpose of trafficking and inconsistent with possession for personal use.

24In the course of executing the search warrant, police also searched a bedroom in the basement of 180 Rosethorn. In that basement bedroom they found a valid Ontario Health Card for Mr. Salvati. They also found a copy of a Recognizance of Bail entered into by Mr. Salvati on August 28, 2018. The Health Card and the Recognizance of Bail were photographed but not seized.

25The other occupants of 180 Rosethorn, all of whom were on the main floor of the house at the time of the execution of the search warrant, were initially detained. However only two of the other occupants were ultimately charged: (i) Abel Abdo, who was standing in the kitchen and found with a firearm and approximately 120 grams of cocaine on his person; and (ii) Neishak Clarke, who was sitting at the dining room table with what appeared to be cocaine. However subsequent testing disclosed that the substance found on the dining room table was phenacetin.² The charges against Mr. Abdo and Mr. Clarke have been resolved separately.

The Charges

26The charges against Mr. Salvati fall into two groups. The first group consists of the charges arising from the police chase on November 4, 2018 (collectively, the “Motor Vehicle Charges”). They are as follows:

a. operating a motor vehicle while being disqualified, contrary to s. 259 (4) of the Criminal Code (Count 6 of the Indictment);

b. failing without reasonable excuse to stop his motor vehicle as soon as reasonable while being pursued by a peace officer, contrary to s. 249.1 (1) of the Criminal Code (Count 7 of the Indictment);

c. on November 4, 2018, breach of a condition of a recognizance requiring him to remain in his residence at all times, contrary to s. 145 (3) of the Criminal Code (Count 8 of the Indictment);

d. on November 4, 2018, breach of a condition of a recognizance requiring that he not operate a motor vehicle, contrary to s. 145 (3) of the Criminal Code (Count 9 of the Indictment); and

e. breach of a condition of a probation order requiring that he not be in the driver’s seat of a motor vehicle, contrary to s. 733.1 (1) of the Criminal Code (Count 10 of the Indictment).

27The second group of charges consists of those arising from the execution of the CDSA search warrant and Mr. Salvati’s arrest on November 5, 2018 (collectively, the “Drug-Related Charges”). They are as follows:

f. possession of a controlled substance, namely, cocaine, for the purpose of trafficking, contrary to s. 5 of the CDSA (Count 1 of the Indictment);

g. possession of a controlled substance, namely, fentanyl, for the purpose of trafficking, contrary to s. 5 of the CDSA (Count 2 of the Indictment);

h. possession of a controlled substance, namely, crack cocaine, for the purpose of trafficking, contrary to s. 5 of the CDSA (Count 3 of the Indictment);

i. possession of property of a value not exceeding $5000, knowing that all or part of the property has been derived directly or indirectly from the commission of an indictable offence, contrary to s. 355 (1) of the Criminal Code (Count 5 of the Indictment); and

j. on November 5, 2018, breach of a condition of a recognizance requiring that he be in the presence of his surety at all times, contrary to s. 145 (3) of the Criminal Code (Count 11 of the Indictment).³

Applicable Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

28The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.

29Thus, Mr. Salvati is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

30Mr. Salvati did not testify and the defence tendered no evidence. There is no onus on an accused to prove his innocence by going into the witness box or by tendering evidence. It is up to the Crown to prove an accused’s guilt beyond a reasonable doubt, not the other way around.

31I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Mr. Salvati is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to Mr. Salvati and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

32I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that Mr. Salvati committed an offence with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt in relation to that offence.

b. Circumstantial Evidence and Proof Beyond a Reasonable Doubt

33The Crown’s case in relation to the Drug-Related Charges is largely circumstantial. As the Supreme Court of Canada noted in R. v. Villaroman,⁴ in order to find Mr. Salvati guilty in relation to any of these charges, it is necessary that a finding of guilt be the only reasonable inference that the evidence, or the lack of evidence, permits. Moreover, if the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that Mr. Salvati is guilty, then he is entitled to an acquittal.

34Nor is it necessary that inferences inconsistent with guilt be based on, or arise from, “proven facts”. At the same time, those inferences must be reasonable, given the evidence or the absence of evidence, assessed logically, and in light of human experience and common sense.⁵

35When assessing circumstantial evidence, it is necessary to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown is required to negative those reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence of the absence of evidence, not on speculation.⁶ In short, “circumstantial evidence does not have to totally exclude other conceivable inferences”,⁷ and the trier of fact “should not act on alternative interpretations of the circumstances that it considers to be unreasonable”.⁸

The Motor Vehicle Charges

a. Positions of the Parties

36The Crown relies upon the evidence of Khatkevich to support the conclusion that Mr. Salvati was driving the blue Hyundai motor vehicle involved in the police chase on November 4, 2018. The Crown concedes that none of the other officers who testified at trial directly observed the driver of the Hyundai.

37As described above, Khatkevich was the passenger in the police scout car which pulled up beside the blue Hyundai as it was being boxed in by the police vehicles on Weston Road. Khatkevich testified that the window on his door was down as his scout car approached the Hyundai. He estimated that he had an opportunity to observe the driver of the Hyundai for approximately 4 or 5 seconds and that he briefly made eye contact with the driver. Although it was shortly after 5 PM and was getting dark, Khatkevich testified that he had a clear view of the driver and recognized him as Mr. Salvati, based on the photograph he had seen during the police briefing earlier that day.

38Counsel for Mr. Salvati points out that the Crown’s case against Mr. Salvati on the Motor Vehicle Charges depends entirely on eyewitness identification evidence, which has been repeatedly found to be inherently unreliable. As the Court of Appeal pointed out in R. v. MB, eyewitness identification is “difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those very same reasons.”⁹

39In this case, Khatkevich had only a fleeting glimpse of the driver of the Hyundai. Even though Khatkevich’s window was down, counsel for Mr. Salvati notes that the window of the blue Hyundai was up and it was getting dark. Khatkevich had only briefly seen a photograph of Mr. Salvati at a briefing a few hours earlier. Counsel argues that the officer was unduly influenced by the broadcast on the police radio that Mr. Salvati was driving the Hyundai.

40Counsel for Mr. Salvati argues that the circumstances here are analogous to those in R. v. Bao, where a police officer’s identification of the driver of a motor vehicle, based on his observation of the driver for a few seconds as the motor vehicle drove past him, was held to be of no value.¹⁰ In like manner, Khatkevich’s identification evidence should be given no weight.

b. Analysis

41I find that the evidence of Khatkevich, while honest and delivered in a forthright manner, displays many of the well-known frailties associated with eyewitness identification evidence.

42First, Khatkevich had a very limited opportunity to observe the driver of the Hyundai. It was dusk in early November and getting dark. Khatkevich saw the driver for 4 or 5 seconds as the vehicles were slowing and coming to a stop. Although Khatkevich made eye contact with the driver, he also acknowledged that the driver was looking around at the other vehicles that were attempting to box him in. Thus Khatkevich had, at most, a momentary opportunity to directly observe the face of the driver.

43Second, the Court of Appeal has highlighted the fact that eyewitness identification can be tainted in circumstances where the witness’ identification has been shaped by a prior suggestion.¹¹ For example, it is dangerous and improper to present a potential identification witness with a single photograph of a suspect. Presenting a single photograph is highly suggestible and may contaminate the identification process.

44In this case, not only was Khatkevich shown a single photograph of Mr. Salvati earlier in the day, he was also told over the police radio that Mr. Salvati was driving the Hyundai. This meant that he was assuming that the driver was Mr. Salvati. His identification of Mr. Salvati as the driver of the Hyundai is hardly surprising, but ultimately must be given limited probative value.

45Taking into account these circumstances, I attach little weight to Khatkevich’s identification of Mr. Salvati as the driver of the Hyundai.

46Since this is the only evidence supporting the Crown’s assertion that Mr. Salvati was the driver of the Hyundai, the Crown has failed to establish this fact, either on a balance of probabilities or beyond a reasonable doubt. All of the Motor Vehicle Charges are dependent upon a finding that Mr. Salvati was the driver of the Hyundai.

47I therefore find him not guilty on these charges.

The Drug-Related Charges

a. Key Issue is Possession

48Mr. Salvati concedes that the substances found in the Ziploc bag in the second floor bathroom were cocaine, crack cocaine and fentanyl. He further concedes that the quantity of drugs found, the manner of their packaging, as well as the digital scale, are consistent with possession for the purpose of trafficking and inconsistent with possession for personal use.

49Thus, the key remaining issue in relation to the Drug-Related Charges is whether the Crown has proven beyond a reasonable doubt that Mr. Salvati had possession of the drugs that were found in the second floor bathroom.

50“Possession” for purposes of the CDSA is defined in s. 4 (3) of the Criminal Code. That definition includes personal possession, constructive possession and joint possession. Each type of possession requires proof of knowledge and control of the thing being possessed.

51Where personal possession is alleged, the accused must be aware that they have physical custody of the thing and must be aware of what the thing is. This knowledge must coexist with an act of control.¹²

52Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit. Constructive possession is complete when an accused has knowledge of the character of the thing, knowingly puts or keeps that thing in a particular place, and intends to have the thing in that place for the use or benefit of the accused or another person.¹³

b. Position of the Crown

53The Crown argues that the inescapable conclusion from the evidence as a whole is that Mr. Salvati had knowledge and control over the drugs in the bathroom.

54Petrakis’ evidence is that as he rushed upstairs, he saw Mr. Salvati standing in the doorway of the second floor bathroom. When Petrakis made eye contact with Mr. Salvati, the latter attempted to go back into the washroom. Given the small size of the washroom, it would have been impossible for anyone in the washroom not to have seen and been aware of the drugs sitting in plain view on the vanity.

55Mr. Salvati had entered the house just moments before the takedown was ordered. The Crown posits that he must have gone upstairs immediately to use the washroom. In addition to the drugs in the Ziploc bag on the vanity, a cell phone was found sitting on the floor in the middle of the washroom. Photographs taken of the washroom showed human waste in the toilet. The Crown further points to Neill’s observation that Mr. Salvati’s belt was unbuckled at the time of his arrest. The Crown argues that these circumstances suggest that Mr. Salvati was in the process of using the washroom, and that he had placed the Ziploc bag with the drugs and digital scale on the vanity. When the police takedown occurred, he panicked and hurriedly attempted to exit the washroom, leaving the Ziploc bag with drugs on the vanity and his cell phone on the floor. However, before he could escape, he was confronted by Petrakis and arrested.

56The Crown relies on the expert evidence of Margetson to establish that it is highly unlikely that any other occupant of the house would have left a Ziploc bag containing between $10,000 and $20,000 of drugs in plain view on the vanity of the second floor. Margetson testified that those engaged in drug trafficking tend not to leave or store their drugs in plain view in a common area that is accessible to other occupants. To the contrary, when drug traffickers store their drugs, they tend to do so in a secure and private location which is not accessible to others, such as a safe or some other hidden location. Since all of the other occupants were on the main floor of the house at the time of the police raid, none of them would have left a significant quantity of drugs sitting in plain view on the second floor vanity.

57The Crown argues that since Mr. Salvati had knowledge and control of the drugs, he was either in personal or constructive possession of them. Given that the other essential elements of the offence are not an issue, this conclusion is sufficient to establish his guilt on the Drug-Related Charges.

d. Position of the Defence

58Counsel for Mr. Salvati argued that the Crown has failed to establish beyond a reasonable doubt that Mr. Salvati was in possession of the drugs in the second floor bathroom. Counsel notes that since the Crown’s case on this issue is circumstantial, the Crown must show that Mr. Salvati’s guilt is the only reasonable conclusion consistent with the evidence. Yet, he argues, there are alternative scenarios inconsistent with guilt that are reasonable in light of the evidence.

59Counsel argued that it would make no sense for Mr. Salvati, having become aware of the police raid on the house, to have left drugs in plain view on the bathroom vanity. Relying on the evidence of Margetson, he argues that drug traffickers do not tend to leave their drugs in plain view in an area accessible by others. As such, it would make no sense for Mr. Salvati to have simply left drugs in plain view in the bathroom, particularly after he became aware of the police raid. He would either have attempted to dispose of them, perhaps by flushing them down the toilet, or hiding them in another location.

60Counsel also points to certain inconsistencies or doubtful aspects of the evidence of Petrakis and Neill.

61With respect to the evidence of Petrakis, counsel notes that initially the officer testified that when he first saw Mr. Salvati, he was only two or three feet away from him. However, when shown photographs and measurements of the second floor of the house on cross-examination, Petrakis agreed that the door to the bathroom was 10 or 11 feet away, on the other side of the second-floor landing. Petrakis conceded that he must have been mistaken in his initial estimate as to his distance from Mr. Salvati when he first saw him.

62Counsel also cross-examined Petrakis extensively as to whether it was possible that Mr. Salvati had been standing in front of one of the bedroom doors on the left-hand side of the second floor, rather than in front of the bathroom, when Petrakis first saw him. Throughout his cross-examination, Petrakis maintained that he was “100 percent certain” that Mr. Salvati was standing in the bathroom door when he first saw him. However, towards the end of his cross-examination, Petrakis agreed that “hypothetically”, had Mr. Petrakis been totally outside of the bathroom, he might have been standing in front of one of the bedroom doors on the left-hand side of the second floor. At the same time, however, Petrakis maintained that this ‘hypothetical’ scenario is not what had in fact occurred, and that he had seen Mr. Salvati in the door to the washroom.

63On this basis, counsel argued that it was possible that when the takedown was ordered Mr. Salvati had been in one of the bedrooms on the left-hand side of the upstairs, rather than the washroom, and had come out of that bedroom to surrender himself when he heard the police enter the residence.

64Counsel also pointed out that it appeared that Mr. Salvati’s bedroom was in the basement, since his health card and a copy of a recognizance issued to him were found in the basement bedroom. There was a washroom in the basement of the house near that bedroom. If Mr. Salvati had needed to use the washroom when he entered the house, it stands to reason that he would have gone downstairs to use the washroom there rather than use the second floor washroom. This casts further doubt on the Crown’s allegation that Mr. Salvati went upstairs to use the washroom.

65Counsel also argued that Neill’s evidence to the effect that Mr. Salvati’s belt had been unbuckled should be disregarded. Counsel argued that Neill was not a credible witness, pointing out that Neill had not included the detail about the belt being unbuckled in his notes. The defence did not become aware of Neill’s alleged observation of the unbuckled belt until his evidence at trial.

66Counsel further pointed out that Neill’s notes had also omitted numerous other significant details about his investigation of the case, including certain details about his investigation of the blue Hyundai motor vehicle he found abandoned in the parking lot the previous evening. Counsel argued that Niell’s notetaking was at best negligent and at worst a deliberate attempt to withhold potential exculpatory evidence from the defence. As such, his evidence regarding Mr. Salvati’s belt having been unbuckled should be given no weight.

67A further argument advanced on behalf of Mr. Salvati is that he simply did not have enough time to have accessed the second floor washroom before he was apprehended by Petrakis. Counsel pointed to a statement made by Sukhram in his cross-examination, in which he agreed that he had ordered the takedown “mere seconds” after he saw Mr. Salvati entering the house. Counsel argued that this ruled out the possibility that Mr. Salvati could have gone upstairs, put the drugs on the vanity and used the washroom prior to his apprehension. Counsel also pointed out a photograph of the bathroom taken during the search which indicated that the toilet seat was in an upright position. This was inconsistent with the possibility that Mr. Salvati had used the toilet since he would have put the toilet seat down before doing so.

68Mr. Salvati argues that this evidence, or lack of evidence, is sufficient to raise a reasonable doubt as to whether he was aware of and/or had control of the drugs in the bathroom. On this basis, there is reasonable doubt as to whether he was in possession of the drugs, and he is entitled to an acquittal on the Drug Related charges.

e. Analysis

69In my view, the totality of the evidence strongly supports the conclusion that Mr. Salvati placed the Ziploc bag containing drugs on the second-floor bathroom vanity and was therefore in possession of them.

70The circumstances pointing towards this conclusion include the following:

i. when observed by Petrakis, Mr. Salvati was standing in the doorway of the second-floor washroom, and he appeared to Petrakis to be coming out of the washroom;

ii. a Ziplock bag containing a significant quantity of drugs and digital scales was sitting in plain view on the vanity of the washroom. Anyone in the washroom would have been aware of the drugs on the vanity;

iii. when first seen by Petrakis, Mr. Salvati was leaving the washroom with his belt unbuckled. A cellphone was left in the middle of the bathroom floor. These circumstances support the inference that Mr. Salvati was in the process of using the washroom, and looking at his phone, just before the takedown occurred, and that he had placed the drugs on the vanity while doing so;

iv. When Mr. Salvati made eye contact with Petrakis he turned around and tried to go back into the washroom. This supports the inference that he was aware of the drugs that he had left on the vanity, and was attempting to remove them from plain view;

v. most significantly, of the seven occupants of the house at the time of the takedown, only Mr. Salvati had an opportunity to put the drugs on the second-floor washroom vanity. The other occupants were all downstairs on the main floor. As Margetson testified, none of them would have left a Ziploc bag with a significant quantity of drugs sitting in plain view in a common area of the house.¹⁴

71In my view, the inescapable inference arising from these facts is that Mr. Salvati must have put the drugs on the vanity of the second-floor washroom.

72As discussed above, counsel for Mr. Salvati points to a number of circumstances which, he argues, are inconsistent with the conclusion that Mr. Salvati put the drugs on the vanity, or was otherwise in possession of them. However, despite the able submissions of Mr. Gonzalez, I do not find these submissions persuasive, for the following reasons:

1. I do not attach any particular significance to the fact that Petrakis was mistaken in his initial estimate as to his distance from Mr. Salvati when he first saw him. As discussed above, Petrakis initially testified that he was only two or three feet away from Mr. Salvati when he first saw him leaving the second-floor washroom. After reviewing photographs of the second floor, Petrakis acknowledged that he had been mistaken in this initial estimate and that Mr. Salvati would have been 10 or 11 feet away from him as he exited the washroom.

Even though Petrakis was mistaken as to his distance from Mr. Salvati, the fact remains that he was only 10-11 feet away and in an excellent position to observe Mr. Salvati. Petrakis was quite clear throughout his evidence that he had observed Mr. Salvati in the doorway to the washroom, facing him, and he was never shaken from that position on cross examination.

Petrakis testified in an entirely straightforward and credible manner. This is reflected in the fact that he was prepared to concede that he had been mistaken in his initial estimate as to his distance from Mr. Salvati when he first saw him. I do not find that his mistaken estimate of the distance detracts from the credibility or reliability of his observation of Mr. Salvati in the doorway of the washroom.

2. Counsel for Mr. Salvati questions whether Petrakis was correct in his observation that Mr. Salvati was coming out of the second-floor bathroom, rather than from one of the bedrooms on the left-hand side of the second floor. During cross-examination, counsel suggested that if Mr. Salvati had been coming out of one of these bedrooms with the intention of surrendering to police, it might have appeared to Petrakis that he was coming out of the washroom when in fact he was coming out of a bedroom.

I find this alternative scenario implausible and inconsistent with the totality of the evidence, for a number of reasons.

First, Petrakis maintained throughout his evidence that he was “100 percent certain” that Mr. Salvati had been in the doorway to the washroom when he first saw him. When it was put to him that Mr. Salvati might actually have been coming out of one of the bedrooms, Petrakis considered that this “hypothetical” suggestion was inconsistent with what he had actually seen.

Second, from his initial vantage point, Petrakis could not even see the bedrooms on the left-hand side of the second floor. Thus, it was simply not possible for Petrakis to have seen Mr. Salvati coming out of one of the bedrooms on the left-hand side of the second floor.

Third, the suggestion that Mr. Salvati had been coming out of a second-floor bedroom with the intention of surrendering to police is inconsistent with other uncontradicted aspects of Petrakis’s evidence. Petrakis testified that when he made eye contact with Mr. Salvati, the latter turned around and tried to get back into the washroom. Moreover, when Petrakis ran across the second-floor landing and grabbed Mr. Salvati, the latter resisted arrest and had to be taken to the ground. In short, far from surrendering to the police, the evidence indicates Mr. Salvati was attempting to do precisely the opposite.

Fourth, there is nothing in the record that would suggest any reason why Mr. Salvati would have been in one of the bedrooms on the second floor of the house. There was evidence tying Mr. Salvati to the bedroom in the basement of the house, namely, the Health Card and the recognizance. But there was no evidence of any connection between Mr. Salvati and the bedrooms on the second floor of the house. As such, the suggestion that he might have been coming out of one of those bedrooms is entirely speculative.

Accordingly, I find that when Petrakis first saw Mr. Salvati, the latter was standing in the doorway of the washroom, rather than one of the bedrooms on the second floor of the house.

3. Counsel for Mr. Salvati argued that his client did not have enough time to enter the washroom on the second floor prior to the police takedown. In making this argument, he relied in particular on the evidence of Sukhram who stated that he ordered the takedown “within seconds” of having observed Mr. Salvati entering 180 Rosethorn. Counsel argues on this basis that Mr. Salvati would not have had sufficient time to go upstairs and use the washroom before being apprehended by Petrakis.

The most obvious difficulty with this argument is that Mr. Salvati was found exiting the washroom on the second floor. Therefore, he must have had enough time to have gone upstairs and enter the washroom prior to the police takedown.

I do not find any inconsistency between this conclusion and Sukhram’s evidence. Sukhram testified that when he ordered the takedown, the police officers who were stationed nearby converged on the target address in their various vehicles. The officers then entered the house from the front and rear entry doors. It would have taken some small amount of time for this to occur. Given Mr. Salvati’s location when first observed by Petrakis, there had to have been enough time for him to go upstairs and into the washroom.

I would further point out that none of the officers was asked about whether Mr. Salvati had sufficient time to enter the washroom prior to the police takedown. Counsel for Mr. Salvati raised this suggestion for the first time in his closing argument.

I therefore find that Mr. Salvati had sufficient time to enter the washroom on the second floor and place the drugs on the vanity prior to the police takedown.

4. Counsel for Mr. Salvati questions the credibility and/or reliability of Neill’s evidence that Mr. Salvati’s belt had been unbuckled at the time of his arrest. Counsel pointed out that Neill’s notes made no mention of this fact. Counsel also took issue with the fact that certain other details which might have been favourable to the defence (such as the fact that the blue Hyundai that was found abandoned in the store parking lot on the evening of November 4, 2018 was not registered to Mr. Salvati) had not been included in Neill’s notes.

Neill explained that he had not included these details in his notes because he was certain that he would remember them independently. Counsel for Mr. Salvati pointed out that police officers are expected to make complete and accurate notes as part of disclosure to the defence, not simply to assist officers in their recollections of events. Counsel suggested that Neill’s incomplete notetaking called into question his credibility and that his evidence to the effect that Mr. Salvati’s belt was unbuckled should be given little weight.

While officers’ notes are provided as part of disclosure, there is no requirement that an officer record everything he or she observed in their notebook in order to comply with the Crown’s disclosure obligations. As Durno J. observed in R. v. Brown,¹⁵ the absence of notebook entries may well call into question the credibility or reliability of a police officer’s evidence. But the significance of an omission in an officer’s notebook must be determined by the trier of fact on a case-by-case basis, in light of the explanation for the omission, the significance of the omission and other evidence.¹⁶

In this case, I do not find the absence of a notebook entry regarding Mr. Salvati’s belt having been unbuckled as impacting the credibility or reliability of Neill’s evidence on this point. There is no dispute that Neill assisted Petrakis in making the arrest of Mr. Salvati. In helping Mr. Salvati to his feet, he would have been in an excellent position to observe whether Mr. Salvati’s belt was unbuckled. Despite not having made a note of it, Neill was quite certain that he had in fact seen Mr. Salvati’s belt being unbuckled. I also find it significant that Neill mentioned Mr. Salvati’s belt having been unbuckled in passing, in response to a question from the Crown regarding Mr. Salvati’s appearance. In short, Neill included this observation as a detail rather than as a major observation on his part.

On balance, I accept Neill’s evidence on this point and find that Mr. Salvati’s belt was in fact unbuckled at the time of his arrest.

5. Counsel for Mr. Salvati argued that if Mr. Salvati had put the drugs on the vanity, it made no sense for him to then leave them there in plain view to be discovered by the police. Instead, the logical response would have been to attempt to dispose of them by, for example, flushing them down the toilet.

However, as Margetson testified, persons do not always react in a logical manner when taken by surprise by the police. Instead, they often panic and react in ways differently than they would have, had they been given more time to consider their options calmly. Moreover, the police were attempting to locate and apprehend Mr. Salvati as quickly as possible precisely to prevent him from disposing of any contraband. I therefore do not find it unusual or odd that Mr. Salvati attempted to exit the washroom, leaving the drugs behind in plain view.

73Based on the totality of the evidence, I find that the only reasonable conclusion that can be drawn is that Mr. Salvati placed the Ziploc bag containing the drugs on the vanity in the second floor washroom, and I so find. None of the concerns or alternative scenarios raised by Mr. Gonzalez on behalf of Mr. Salvati cast any reasonable doubt on this conclusion.

74There is no suggestion that Mr. Salvati did not know that the Ziploc bag contained drugs. I therefore find that he had both knowledge and physical control of the drugs and was in physical possession of them. It has also been conceded that the quantity and packaging of the drugs is consistent with possession for the purpose of trafficking and is inconsistent with possession for personal use.

75On this basis, I find Mr. Salvati guilty of counts 1, 2 and 3 in the Indictment.

76With respect to count 5, alleging Mr. Salvati was in possession of proceeds of crime, a total of $2180 in mixed denominations was found in Mr. Salvati’s right pant’s pocket. Margetson’s expert opinion was that, due to the circumstances of the case, and without any other explanation, the reasonable inference is that some or all of these proceeds were derived from drug trafficking. No other explanation has been offered for the presence of this amount of cash in Mr. Salvati’s possession. I therefore find that the only reasonable conclusion available on the totality of the evidence is that part or all of these proceeds was derived from drug trafficking and that Mr. Salvati must have been aware of this fact.

77I therefore find Mr. Salvati guilty on Count 5 of the Indictment.

Count 11: Breach of Recognizance

a. Evidentiary Issue

78The above findings are sufficient to dispose of the first 10 Counts in the Indictment. However, an additional evidentiary issue arises in respect of Count 11, which alleges that on November 5, 2018 Mr. Salvati was in breach of a condition of a recognizance entered into on August 28, 2018 (the “Recognizance”) requiring, inter alia, that he be in the presence of his surety at all times.

79In particular, the issue is whether the Crown is entitled to introduce a photocopy of the Recognizance in order to prove the existence of this condition, in circumstances where the Crown is unable to produce either an original or a certified copy of the document.

80The Crown produced certified copies of the four Informations which set out the charges which formed the basis for the bail hearing held on August 28, 2018. It is agreed that these Informations are admissible for the truth of their contents pursuant to s. 24 (a) of the Canada Evidence Act since they have been certified to be true and correct copies of the originals.¹⁷ However, the trial Crown, Ms. James, indicated that despite making inquiries she had been unable to locate either the Recognizance or a certified copy, and is only able to produce an uncertified photocopy.

81I note that s. 36 of the CEA provides that provisions of the Act providing for the admissibility of documentary evidence “shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act or existing at law.” The phrase “existing at law” in s. 36 includes the common law.¹⁸

82The Crown therefore seeks to admit the photocopy of the August 28, 2018 recognizance under the common law principled exception to the hearsay rule, based on necessity and reliability.

83Mr. Salvati’s position is that, regardless of whether the photocopy is necessary and reliable, as a mere photocopy it should be treated as if it were a blank piece of paper and is therefore inadmissible.

84At the conclusion of a voir dire on this issue, I ruled the photocopy of the Recognizance to be admissible for the purpose of proving the conditions of Mr. Salvati’s Recognizance, with reasons to follow. These are my reasons.

b. The Principled Exception to the Inadmissibility of Hearsay: Necessity and Reliability

85The requirements of necessity and reliability have now been firmly entrenched in our jurisprudence as the touchstones for the admissibility of hearsay evidence. Hearsay remains presumptively inadmissible and, prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which cannot be meaningfully tested by the trier of fact.¹⁹ The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

86The underlying concern which animates the principled approach is that of trial fairness and, in particular, the accused’s right to a fair trial. It would obviously compromise trial fairness and the integrity of the trial process if the Crown were allowed to introduce unreliable hearsay against an accused. Thus, even evidence that is essential to the Crown case cannot be admitted unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it in the absence of cross-examination. Indeed, a trial judge retains a residual discretion to exclude evidence even if necessity and reliability can be shown, where its prejudicial effect is out of proportion to its probative value.²⁰

87Can a mere photocopy of a public document be found to be admissible for the truth of its contents on the basis of the principled approach? The purpose of the principled approach is to provide guidance by identifying relevant concerns and factors to be considered in determining admissibility, in light of the overarching principle of trial fairness. It is a framework of general application, as opposed to applicable only to fixed categories or specific types of evidence. ²¹

88I see no reason why this framework should not be applied in the case of photocopies of documents, even though the photocopy does not fall within any of the established common law exceptions to the hearsay rule.²² I therefore find that, provided the photocopy satisfies the requirements of necessity and reliability, and would not otherwise compromise trial fairness, the document can be admitted into evidence.

c. Necessity and Reliability in this Case

89In my view, the photocopy of the Recognizance tendered by the Crown should be viewed as both accurate and reliable. I say this in part because it is identical to the document which was found along with Mr. Salvati’s health card in the basement bedroom at 180 Rosethorn on November 5, 2018. Moreover, the accuracy of the copy of the Recognizance provided by the Crown is confirmed by comparing it with the Informations which were the subject of the August 28, 2018 bail hearing. These Informations (and associated documentation) confirm that the justice of the peace who presided at the August 28, 2018 bail hearing is the same judicial official whose signature appears on the photocopy of the Recognizance.

90Turning to the question of necessity, I note that the necessity criterion is given a flexible definition which may vary depending on the degree of reliability associated with the evidence in its hearsay form.²³ Thus, the fact that there is no concern as to the reliability of the photocopy of the Recognizance is a relevant factor to be considered in the application of the necessity criterion.

91Ms. James on behalf of the Crown submits that despite having made reasonable inquiries, she is unable to locate an original or certified copy of the Recognizance. Ms. James indicated that, although she was not the assigned Crown at the time of the preliminary inquiry, it is her understanding that a photocopy of the Recognizance, rather than an original or certified copy, was tendered at that time. She was assigned to the case following the emergence of the COVID-19 pandemic in March 2020, at a time when normal court operations were suspended and most court staff were working remotely, which has made it more difficult for her to attempt to track down the Recognizance.

92In normal circumstances, it is the responsibility of the Crown to ensure that all documentation necessary to prove its case is available. But these times are anything but normal, including in respect of the administration of justice in Ontario.²⁴ The province has declared the emergence of Covid-19 to be “a danger of major proportions”²⁵ and, amongst other actions, has suspended any provincial statutory or regulatory provision establishing any limitation period, as well as suspended any period of time within which any step must be taken in any proceeding in Ontario.²⁶ While these enactments do not apply to proceedings under the Criminal Code, the pandemic has been found by the Court of Appeal as well as by this Court to be a relevant factor in a variety of criminal contexts in Ontario since March 2020.²⁷

93I accept that the Crown has made reasonable efforts to locate the Recognizance and that those efforts have been hampered by the fact that government and court offices have been operating on a limited basis since the provincial declaration of emergency on March 18, 2020. I further find that this is a relevant consideration in considering whether the Crown has satisfied the necessity criterion for purposes of relying upon the photocopy in order to prove the conditions of the Recognizance.

94I would also note that there is no concern over trial fairness that would arise from the admission of the photocopy. It is evident from the photographs taken in the basement bedroom of 180 Rosethorn that Mr. Salvati had a copy of the identical Recognizance in his possession on November 5, 2018 at the time of his arrest. The only reasonable inference in all of the circumstances is that he was aware of the conditions of the Recognizance and he either knowingly or recklessly breached it by failing to be in the presence of his surety at all times.

95It is important to remember, as Charron J. emphasized in Khelawon, that trial fairness embraces more than the rights of the accused. While trial fairness includes the right to make full answer and defence, “the fairness of the trial must also be assessed in light of broader societal concerns… In the context of admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern.”²⁸ If the photocopy of the Recognizance were not admitted, this societal interest would be undermined.

96Taking all of the relevant factors into account, I find that the necessity and reliability criterion have been met in this case. I further find that in the circumstances of this case, the admission of the photocopy of the Recognizance in order to prove the conditions of Mr. Salvati’s release would not undermine trial fairness. I therefore find the photocopy of the Recognizance tendered by the Crown to be admissible for this purpose.

97The Recognizance establishes that Mr. Salvati was released on condition that he be in the presence of his surety at all times, save for certain limited exceptions, none of which is relevant in this case.

98Mr. Salvati does not contest the fact that the conditions of release in the Recognizance remained in effect on November 5, 2018, and that he has no lawful excuse for the fact he was not in the presence of his surety on November 5, 2018. I therefore find Mr. Salvati guilty of Count 11 in the Indictment.

Disposition

99Mr. Salvati is found not guilty on the following Counts:

i. Count 4, possession of a controlled substance, namely, heroin, for the purpose of trafficking;

ii. Count 6, operating a motor vehicle while being disqualified;

iii. Count 7, failing without reasonable excuse to stop his motor vehicle as soon as possible while being pursued by a peace officer;

iv. Count 8, on November 4, 2018 being in breach of a recognizance requiring him to remain in his residence at all times;

v. Count 9, on November 4, 2018 being in breach of recognizance requiring that he not operate a motor vehicle; and

vi. Count 10, breach of a probation order requiring that he not be in the driver’s seat of a motor vehicle.

100Mr. Salvati is found guilty on the following counts:

vii. Count 1, possession of a controlled substance, namely, cocaine, for the purpose of trafficking;

viii. Count 2, possession of a controlled substance, namely, fentanyl, for the purpose of trafficking,

ix. Count 3, possession of a controlled substance, namely, crack cocaine, for the purpose of trafficking;

x. Count 5, possession of property of a value not exceeding $5000, knowing that all or part of the property has been derived directly or indirectly from the commission of an indictable offence; and

xi. Count 11, breach of a condition of a recognizance requiring that he be in the presence of his surety at all times.

P. J. Monahan J.

Footnotes

1. 1Margetson was also qualified as an expert in the modus operandi of traffickers and distributors and methods of storage, concealment and destruction of such substances by drug traffickers and distributors. His evidence on these issues is described below.
2. 2Although phenacetin is a cutting agent often used in connection with drug trafficking, it is not itself a controlled substance under the CDSA.
3. 3I note that Mr. Salvati was also charged with possession of heroin for the purpose of trafficking, contrary to s. 5 of the CDSA (Count 4 of the Indictment). However, no heroin was found at 180 Rosethorn Ave. and the Crown elected not to proceed with this charge. Accordingly, a verdict of not guilty will be entered in relation to this count of the Indictment.
4. 42016 SCC 33, [2016] 1 SCR 1000 ("Villaroman").
5. 5Villaroman at para 35.
6. 6Villaroman at para 37.
7. 7R. v. Dipnarine, 2014 ABCA 328 at para 22, quoted in Villaroman at para 42.
8. 8Villaroman at para 42.
9. 9R. v. MB, 2017 ONSC 653 at para 29.
10. 10R. v. Bao, 2019 ONCA 458 ("Bao") at para.
11. 11See Bao at para 27.
12. 12R. v. Morelli, 2010 SCC 8 at para 16; R. v. Lights, 2020 ONCA 128 at para 45.
13. 13Morelli at para 17; Lights at para 47.
14. 14Margetson's evidence on this point was accepted by Mr. Salvati who, in fact, relied upon Margetson's testimony to argue that Mr. Salvati would not have left a bag containing drugs in plain view on the second floor vanity.
15. 152014 ONSC 1383 ("Brown") at para 22.
16. 16Brown at para 22. See also R. v. Machado, 2010 ONSC 277 at paras 121 – 123; R. v. Antoniak, [2007] O.J. No. 4816 at para. 24.
17. 17Section 24(a) of the Canada Evidence Act, R.S.C. 1985, c. E-10 (the “CEA”) provides that in every case in which the original record of an official or public document could be admitted in evidence, a certified copy may be admitted without further proof thereof.
18. 18R. v. AP (1996), 1996 CanLII 871 (ON CA), 92 OAC 376 (C. A.); R. v. Ayodeji-Emeni, 2012 CanLII 150765 (ON CJ), [2012] OJ No 6433 (O.C.J.)
19. 19R. v. Khelawon, 2006 SCC 57 at para 2.
20. 20Khelawon, at para 3.
21. 21Khelawon, at paras 44 to 46.
22. 22I note that the common law developed a "public documents" exception to the hearsay rule. However, this exception only applies to originals of public documents and not photocopies. See R. v. AP, above.
23. 23Khelawon, at para 78.
24. 24A similar sentiment has been expressed numerous times by members of this Court over the past number of months. See, for example, R. v. Hearns, 2020 ONSC 2365 at para. 10.
25. 25See Ontario Regulation 50/20, “Declaration of Emergency” enacted under the Emergency Management and Civil Protection Act, RSO 1990, c. E-9.
26. 26See Ontario Regulation 73/20, “Limitation Periods”, ss. 1, 2, enacted under the Reopening Ontario (A Flexible Response to Covid 19) Act, 2020, S.O. 2020, c. 17.
27. 27See R. v. Kazman, 2020 ONCA 251 at paras.17-18 (pandemic relevant consideration in determining “public interest” in context of release pending appeal); Hearns at para. 20 (sentence reduction appropriate in recognition of impact of Covid-19 on conditions of incarceration); R. v. Rajan, 2020 ONSC 2118 at paras 55-56 (Covid 19 alters the calculus under the teritiary ground in determining bail); R v. J.R., 2020 ONSC 1938 at para. 47 (pandemic relevant in context of bail reviews).
28. 28Khelawon, at para 48.