COURT FILE NO.: CR-18-171
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Elizabeth Barefoot, for the Crown
- and -
Luan Ximines
Elliott Willschick, for the Defence
HEARD: October 19, 20 and 21, 2020
REASONS FOR JUDGMENT
Sproat J.
OVERVIEW
[1] Mr. Ximines is charged that on July 26, 2018 he was in possession of fentanyl and cocaine for the purpose of trafficking. There are a number of ancillary and related charges which I will itemize later.
[2] In the course of my reasons, I will make certain findings of fact, however, all my findings of fact are based on the totality of the evidence, and taking into account any findings or analysis that appears later in my reasons.
[3] Mr. Ximines resides in Brampton and is approximately 40 years old. On July 25, 2018 he came to Owen Sound with his female cousin Lovejoy Maxwell, who at the time was 20 years old.
[4] Mr. Ximines moved in to an apartment in a house on 8^th^ Street East which I will simply refer to as the “residence”. It happened that the residence was under surveillance, the target being a woman who lived there, who I will refer to as E.
[5] On July 26, 2018 the police observed a number of known fentanyl and heroin users gathered outside or entering the residence. At 3:10 p.m. Mr. Ximines left the residence driving his silver Acura with a woman, who I will refer to as A, as a passenger. The vehicle followed a circuitous route to the Diamond Motel.
[6] The female A was then observed searching for something in the bush or around the retaining wall of a parking lot. In fact, OPP officers had already found and taken two bags containing marijuana, a spoon with a white substance, a syringe loaded with a red substance and other drug use paraphernalia from this location. A was then observed to rejoin Mr. Ximines in the silver Acura.
[7] The police followed Mr. Ximines while he again took a circuitous route to a local mall. As Mr. Ximines left the mall with A he was arrested. An iPhone on his person was seized.
[8] The police then obtained a search warrant for the residence. In what, as I will later explain, was clearly Mr. Ximines’ bedroom the police found Ms. Maxwell hiding in a closet. On the floor of the closet, in plain view, were three baggies. One contained fentanyl, one contained crack cocaine and one contained powder cocaine.
[9] The Crown case consisted of an Agreed Statement of Fact; the testimony of three officers who were involved in the surveillance and arrest of Mr. Ximines; Waterloo Region Detective Place who testified as an expert in the use, pricing, sale and distribution of fentanyl and cocaine including the modus operandi of such drug traffickers; and Ms. Maxwell. Detective Place interpreted certain words based on his knowledge of the drug sub-culture. His interpretations were not challenged in cross-examination and I accept them as correct. The defence elected to not call evidence.
[10] I will next review, under a number of headings, the evidence relied upon by the Crown to prove possession of the fentanyl and cocaine. I will then address the other charges.
ADMISSIBILITY OF THE Text Messages
Context of the Text Messages
[11] I will begin by reviewing the messages that the Crown seeks to rely upon and then discuss the basis upon which they are admitted into evidence.
[12] It was common ground that the context of certain text messages suggested Mr. Ximines had a romantic relationship with a woman identified in the messages as “F”. I appreciate that in some texts F is angry at Mr. Ximines suggesting he is seeing other women. It remains, however, that there is a continuing relationship that F wants to maintain. There is no indication of animus that would cause F to lie about Mr. Ximines. The text messages from F are replete with drug references. I will begin with her messages.
[13] On July 19, 2018 F texts:
(a) I got “lots of chops waiting please be quick or even if you have anything on you till you can grab the rest can you give me something small for now?” (Detective Place explained that “chops” can be a noun referring to a drug deal or a verb referring to cutting a larger amount of drugs into a smaller amount for sale.
(b) “You grabbed the lock that we bought for the place in OS?” (I interpret “OS” to mean Owen Sound).
(c) “I need to reup later tonight or tomorrow” (“Reup” meaning to re-supply according to Detective Place).
[14] On July 20, 2018 F texts:
(a) she could have gone through an ounce and that is $1,600 Mr. Ximines lost out on.
(b) she has people waiting and she has been losing big money all day. Are you coming or not?
(c) be safe OS is a “heat bag place”.
(d) she is not going to OS as “no one in OS smokes this shit”.
(e) “you got shit moving good up there, your all set up, you’ll be just fine”
(f) “you mixed something in this. Plastic?”
[15] While Mr. Ximines did not expressly adopt these comments from F, they were in a relationship. I find that if he did not understand what she meant, or if he was not supplying drugs to her, he would have told her so. I now turn to the other text messages.
[16] On July 20, 2018 Mr. Ximines received a message, “How much down you want”… (“down” being a word, according to Detective Place, used to denote fentanyl or heroin which are depressants) and forty minutes later a follow up message “Bro if not gonna answer me I don’t know then”. While there was no response from Mr. Ximines by iPhone message, Detective Place testified it is not unusual for drug dealers to use multiple devices in order to not leave a clear trail of their dealings.
[17] On July 22, 2018 “Tim” messaged Mr. Ximines and states that he wants to trade a few ounces of pot for other drugs.
[18] On July 25, 2018 Mr. Ximines received a text message “U got purp?” He apparently understands the question and messages back asking who and where the person is. Detective Place testified that “purp” is commonly used to refer to fentanyl which is often coloured purple.
[19] On July 25, 2018 Mr. Ximines received a message saying the sender needs “a half G” and has cash to pay for it. Detective Place testified that “G” is commonly used for gram and that a ½ gram would be a common quantity in which cocaine would be purchased.
[20] The Crown sought to introduce the text messages dated July 17 – 26, 2018 for the truth of their contents as evidence that Mr. Ximines was travelling to Owen Sound intending to deal, and was in fact dealing, in drugs including fentanyl. The Crown position was that they were admissible under the principled exception to the hearsay rule and as documents in possession of Mr. Ximines. The defence position was that only the text messages dated July 25 and 26, 2018 were admissible and the defence challenged their probative value.
Principled Exception to the Hearsay Rule
[21] I find that the text messages are admissible for the truth of their contents under the principled approach.
[22] As a matter of common sense and experience, as of July 2018, most people carried a cell phone every day. Few would travel overnight without it. The iPhone was on Mr. Ximines’ person. I find that this was his cell phone.
[23] As to reliability, in R. v. Bridgman, 2017 ONCA 940, Fairburn, J.A. observed, at paragraph 55, that multiple messages case referring to the sale, purchase and trading of drugs, and drug dealing generally, enhance threshold reliability.
[24] In Bridgman there had been incoming messages from nine different phones referring to the sender wanting to purchase drugs. Fairburn, J.A. at paragraph 42, referred to the fact that such messages constitute an implied assertion that the accused was a drug dealer.
[25] In the case of Mr. Ximines, in the period July 19 – 25, 2018 there are messages from five different phones referring to the purchase and sale of drugs. There are multiple messages from F, a person Mr. Ximines was in a romantic relationship with, constituting an implied assertion that Mr. Ximines is a drug dealer. The number of messages and their context satisfy me that this hearsay evidence is reliable.
[26] In my view, the necessity criterion is also established. As stated by Fairburn, J.A. in Bridgman:
[61] Yet, as noted by the trial judge, even the majority judgment in Baldree was careful to distance itself from a categorical rule related to necessity when it came to drug-purchase calls: Baldree, at para. 70. The majority in Baldree, at para. 72, commented on the fact that the number of callers may inform necessity: “The Crown cannot be expected, where there are numerous declarants, to locate and convince most or all to testify at trial, even in the unlikely event that they have supplied their addresses”. See also: Baldree, at para. 107; and R. v. Gerrior, 2014 NSCA 76, 348 N.S.R. (2d) 354, at para. 52.
[27] I appreciate that in Bridgman there was evidence that persons in the drug subculture often had fake names assigned to their phones and that it is next to impossible for the police to track people down and have them testify. In my opinion, such evidence is not required as these facts are obvious as a matter of common sense and experience.
[28] I am, therefore, satisfied that the requirements of threshold reliability and necessity have been met and that the probative value of this evidence is not outweighed by what is a minimal, if any, prejudicial effect.
Documents in Possession
[29] The principled exception to the hearsay rule is the more compelling basis for admitting the evidence. As such, I do not need to consider the alternate documents in possess ground for admissibility.
CONTENTS OF THE BEDROOM
[30] I am easily satisfied that the bedroom, which had the closet in which Ms. Maxwell was hiding, was being occupied by Mr. Ximines. It was an agreed fact that his driver’s licence, as well as an appearance notice issued to Mr. Ximines on July 25, 2018 by the Shelburne OPP, were on the bed. There was also an additional cell phone on the bed, however, it did not have a SIM card.
[31] On the top of the dresser was:
(a) a digital scale which tested with trace fentanyl, cocaine, methamphetamine, THC, and caffeine on it;
(b) 5.8 grams of marijuana in a clear zip lock baggie, and;
(c) a “Backwoods” brand package of cigars.
[32] Inside the closet, in plain view on the floor, was a clear baggie with 21 grams of fentanyl, a clear zip lock baggie with 10.7 grams of crack cocaine and a clear baggie with 13.4 grams of cocaine. Detective Place testified that the fentanyl and cocaine had a value between $3,000 - $8,700, depending on the amount being sold in any transaction. Larger quantities would attract a volume discount.
CONTENTS OF THE VEHICLE
[33] The items found in Mr. Ximines’ vehicle included a Samsung phone, a “Backwoods” brand cigar package and zip lock baggies in a box.
EVIDENCE OF MS. MAXWELL
[34] Ms. Maxwell testified that she came to Owen Sound to keep Mr. Ximines company. The drugs in the closet were his and her role was guarding them while he was out.
[35] When Mr. Ximines and Ms. Maxwell were stopped by the OPP in Shelburne on July 25, 2018 she identified herself as being her cousin Daysha Maxwell. She gave the same false name to the police in Owen Sound on July 26, 2018. She acknowledged in cross-examination that she lied because she was then subject to a conditional sentence and was prepared to lie to avoid going to jail.
[36] Ms. Maxwell was also, until the week before trial, jointly charged with possession of the fentanyl and cocaine. She was, however, allowed to plead guilty to an offence which she described as “guarding” the drugs for Mr. Ximines. She then received a conditional sentence on a joint submission. Ms. Maxwell acknowledged in cross-examination that she was prepared to lie if it would help keep her out of jail.
[37] With great reluctance, Ms. Maxwell did testify that she had been guarding the drugs while Mr. Ximines was out and that they were his drugs.
Law – Possession
[38] Watt’s Manual of Criminal Jury Instructions (Second Edition), Final 476, identifies the essential elements of possession for the purpose of trafficking.
[39] Possession includes knowingly having a substance in the actual possession or custody of somebody else or in some place for the use or benefit of himself provided that he has some element of control over the substance.
ANALYSIS AND CONCLUSION ON POSSESSION OF FENTANYL AND COCAINE FOR THE PURPOSE OF TRAFFICKING
[40] Ms. Maxwell acknowledged her willingness to lie to help herself. I do not place any reliance on her evidence in considering the strength of the Crown case.
[41] I appreciate that the text messages cannot be used to reason that because Mr. Ximines has dealt drugs in the past, or because he has a propensity to do so, he is more likely to have committed the offences charged. I also cannot reason that because of past drug dealing he is a bad person and so deserving of punishment.
[42] The text messages relied upon by the Crown were sent or received within six days of the offence date. They relate to the decision to go to Owen Sound to sell drugs and the sale of drugs. The text messages are compelling evidence that as of the offence date Mr. Ximines was dealing drugs. I disregard any evidence of text messages sent more than six days prior to the offence date.
[43] Detective Place testified that drugs are less expensive in major urban centers than in rural areas. As such, it would only make sense that a person coming to sell drugs would stock up before coming to Owen Sound.
[44] Mr. Ximines was in Owen Sound to deal drugs so had to have a supply of drugs. The evidence indicates he had a room and a vehicle as logical places to secure his drugs. The fact that no drugs were found on his person or in his vehicle allows the reasonable inference that his drugs were kept at the residence.
[45] A scale on the dresser in the bedroom occupied by Mr. Ximines had trace amounts of a variety of drugs, including fentanyl and cocaine.
[46] Given that the Crown relies heavily upon circumstantial evidence, the Crown must prove beyond a reasonable doubt that guilt (in this case for practical purposes, that these were Mr. Ximines’ drugs) is the only rational inference that can be drawn from the evidence.
[47] The defence pointed to the agreed fact that upon arrest Mr. Ximines appeared to be confused when the police told him why he had been arrested. As a matter of common sense and experience quite often individuals confronted with an allegation adopt a, “who me? – there must be some mistake” position. I would give this evidence of demeanor little weight.
[48] The defence suggested that the drugs might belong to Ms. Maxwell. That is not a rational inference given that we know from the text messages that it was Mr. Ximines who was coming to Owen Sound intending to deal drugs in significant quantity. There could at its highest be a rational inference that Ms. Maxwell and Mr. Ximines acted in concert and were in joint possession.
[49] The defence also suggested that the drugs could have been owned by E or her father P who also lived in the residence. I don’t find that to be a rational inference. The drugs were found in Mr. Ximines’ closet. They were either there all along or Ms. Maxwell moved them there try to hide them and thereby assist Mr. Ximines. It makes little sense to me that the other two occupants of the residence would have left their drugs lying around in plain view. It makes no sense to me that Ms. Maxwell would have picked up their drugs and brought them to Mr. Ximines’ room, thereby implicating herself and Mr. Ximines.
[50] Mr. Willschick submitted that it did not make sense that Mr. Ximines would leave valuable drugs in the care of a woman. I do not agree. She was a family member and so, presumably, someone he knew and trusted. It would be a high-risk proposition for anyone associated with the residence to rob Ms. Maxwell as she could identify the person to Mr. Ximines.
[51] I am satisfied beyond a reasonable doubt that the only rational inference based on the totality of the evidence is that the fentanyl and cocaine were owned by Mr. Ximines and in his constructive possession. Mr. Willschick conceded, reasonably, that given the value of the drugs, it was clear that their possession would be for the purpose of trafficking. I agree and am satisfied beyond a reasonable doubt that Mr. Ximines possessed the drugs for the purpose of trafficking.
[52] I, therefore, find Mr. Ximines guilty on counts one and two.
OTHER OFFENCES
Count 3 – Proceeds of Crime
[53] At the time Mr. Ximines was dealing drugs and there is no evidence to suggest he had any lawful employment. As such, I am satisfied beyond a reasonable doubt that the cash found on his person constitutes proceeds of crime.
Count 4 – Pepper Spray
[54] When stopped by the OPP in Shelburne at 11:42 p.m. on July 25, 2018 the pepper spray was in Ms. Maxwell’s purse. It was later found in the trunk of Mr. Ximines’ Acura.
[55] It is at least possible that this pepper spray was Ms. Maxwell’s, acquired by her for protection while guarding the drugs. As such, I find Mr. Ximines not guilty of this charge.
Counts 5, 6, 7 and 9 – Possession of ammunition while prohibited from doing so by court order
[56] According to the Agreed Statement of Fact, three rounds of live ammunition fell to the passenger side floor, of the Acura Mr. Ximines had been driving, when a piece of the dash was pulled back. There was no evidence to connect Mr. Ximines to a firearm and no evidence as to how long he had owned the Acura or who else had used it. As such, I cannot be satisfied beyond a reasonable doubt that he had knowledge of the ammunition. As such, I find him not guilty of these charges.
Count 8 – Breach of Probation Order to Keep the Peace
[57] It follows from the convictions entered on counts one and two that Mr. Ximines is also guilty of this offence.
Counts 10 and 11
[58] These counts related only to Ms. Maxwell.
Count 12 – Possession of Marijuana
[59] This marijuana was in plain view on the dresser in Mr. Ximines’ room. I am satisfied beyond a reasonable doubt that Mr. Ximines knew of this marijuana and was in possession of it.
CONCLUSION
[60] Mr. Ximines is found guilty, and convictions are entered, on counts 1, 2, 3, 8 and 12. Mr. Ximines is found not guilty on counts 4, 5, 6, 7 and 9.
Sproat J.
Released: November 27, 2020
COURT FILE NO.: CR-18-171
DATE: 20201127
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Luan Ximines
REASONS FOR JUDGMENT
Sproat J.
Released: November 27, 2020