COURT FILE NO.: CR-20-90000180-0000
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DESTYN EDWARDS
Defendant
Somboun Tsai and Karen Rehner, for the Crown
Ashley Audet, for the Defendant Destyn Edwards
HEARD: November 16 - 20, 2020
REASONS FOR JUDGMENT
SPIES J.
Overview
[1] The defendant, Destyn Edwards, is charged with possession of heroin for the purpose of trafficking, on June 4th, 2017, contrary to s. 5(2) of the Controlled Drugs and Substances Act. He elected trial by judge alone and pleaded not guilty to the charge.
[2] Counsel cooperated to run this trial extremely efficiently. Evidence of the observations made by officers at 200 Wellesley Street East in the City of Toronto (“200 Wellesley”) and via video surveillance in the building was introduced through Officer Ferreira, who was the central note taker for all of the three days of surveillance. It was agreed that he could give the hearsay evidence of observations he received from the other officers who were conducting surveillance and that I could accept that evidence as true, subject to the viva voce evidence of some of those officers that Ms. Audet asked the Crown to call. In addition, counsel agreed on an Agreed Statement of Facts (“ASF”) and a book of photographs taken by Officer Hameed who was the Scenes of Crime Officer who took photographs of the items seized when certain individuals were arrested and photographs that he took before and after the search of the inside of unit 2705, a one-bedroom apartment, at 200 Wellesley (the “Apartment”) that was conducted during the early morning hours of June 5th, 2017. Mr. Edwards testified in his own defence and I heard from Jocilene Thompson who testified on behalf of the Defence. At the outset of the trial, I made an order excluding witnesses.
[3] The co-operation of counsel, and in particular Mr. Tsai, allowed this trial to finish on time because at one point there was a concern that the Officer in Charge might have COVID. As a result, Mr. Tsai and Ms. Rehner completed the trial via Zoom with the rest of us continuing in the courtroom. Ms. Thompson also testified via Zoom as she was not feeling well. Fortunately, the Office in Charge tested negative. This did, however, illustrate the flexibility required of counsel in order to complete trials at this time. This was especially important in this case as this matter was being tried with a jury in March 2020 and was mis-tried, after most of the Crown’s case was in, as a result of the pandemic, when the courts originally closed down. I appreciate the flexibility of counsel so that this time, despite these issues, the trial could be completed.
The Issues
[4] There is no dispute that during the execution of the search warrant, 19.07 grams of heroin was found in a locked black safe in the bedroom of the Apartment. This building is owned and operated by Toronto Community Housing and was well known as a place for drug activity.
[5] The central issue in this case is whether or not the Crown has proven beyond a reasonable doubt that the heroin in the safe belonged to Mr. Edwards or that he knew it was in the safe. Although Mr. Edwards was observed carrying the safe out on the street and he had a key to the Apartment, both he and Ms. Thompson testified that Mr. Edwards had obtained the safe for Ms. Thompson so that she could use it to secure her personal belongings and it was her evidence that the heroin belonged to her and that Mr. Edwards did not know that she put it and some of his mail in the safe.
The Evidence and Preliminary Findings of Fact
The Apartment
[6] The Apartment consists of a kitchen, living room, bathroom, bedroom and balcony. The living room is entered directly from the front door at the end of a short hallway and the bathroom is on the right in the hallway. Mail for the Apartment was put through a mail slot in the door to the Apartment where it would fall onto the floor of the hallway. The bedroom and kitchen are down a hallway to the right. The Apartment was not furnished in the conventional way. In the bedroom there was a futon, a chair with wooden arms, a round table with a couple of chairs that one officer aptly described as a dining table and a television on a stand. This bedroom is the room where the safe was found, on a small chest of drawers.
[7] In the living room there was a couch and a bed with a mattress with no cover or bedding on it, although there was a pillow and duvet on the floor. The kitchen was definitely being used as there were dishes in the sink and on the counter and frying pans in the dish drainer. Although there does not appear that there was much food in the one cupboard that was open when the photographs were taken, and there is no evidence of what food if any was in the fridge, there is no dispute that people were living in the Apartment. Based on all of the evidence, I find that the Apartment was likely leased by a man named Solomon Abebe. He had some mental health issues but there is no evidence that Mr. Edwards was taking advantage of him.
[8] The building has two sets of elevators. The first set only goes from the first to the 17th floor and the second set goes from the 18th floor and above. This means that if someone on the 27th floor wanted to go to the third floor they would need to take the elevator down to the main floor and then take one of the elevators from the other set of elevators and go up to the third floor. There are also stairs that access every floor.
The Surveillance Evidence
[9] Surveillance of the Apartment was conducted on the evenings of Tuesday May 23, 2017, from 9:43 p.m. to 11:25 p.m., Saturday June 3, 2017 from 8:08 p.m. to 10:48 p.m. and Sunday June 4, 2017 from 6:40 p.m. to just after midnight. Officers were stationed on the 27th floor where they could see the door to the Apartment and elsewhere around the building. In addition, video surveillance from cameras in the building was reviewed by the officers.
[10] During this period of surveillance, Mr. Edwards was only seen on June 3rd and 4th. On June 3rd, Mr. Edwards was seen leaving the Apartment at 9:00 p.m. on his own. He was observed as he took the stairs to the 23rd floor where he met up with Ally Salim and unknown (“u/k”) M#4 who was later identified as David Ostos. All three men exited the elevator on the main floor and left the building through doors on the east side.
[11] Once outside, Mr. Edwards left the other two men and he was observed entering 536A Parliament Street, a residential building, at 9:14 p.m. He was not observed to be carrying anything. Mr. Edwards was observed again at 9:19 p.m. exiting 536A Parliament Street holding a black safe. He was then observed every few seconds as he walked back to the Apartment. He entered the Apartment at 9:27 p.m. using a key, still holding the black safe.
[12] At 10:28 p.m. Mr. Edwards was seen leaving the Apartment and taking the elevators to the main floor and exiting through the east side doors. He was observed going to a Tim Hortons at 537 Parliament Street for five minutes and then surveillance was discontinued.
[13] On Sunday, June 4th, Mr. Edwards was first observed at 7:22 p.m. exiting the Apartment and walking towards the elevator with Mr. Salim and au/k M#1. They entered the elevator and exited on the main floor and then walked out of the building using the east doors. All three men then went to the Food Basics store located at 238 Wellesley Street East at 7:27 p.m. They exited the store 10 minutes later and returned to the Apartment. Mr. Edwards used a key to unlock the door to the Apartment at 7:41 p.m. and all three men entered.
[14] At 10:04 p.m. Mr. Edwards and Mr. Salim were observed exiting the Apartment and sprinting towards the elevators. They entered an elevator on the 27th floor and exited on the 18th floor. They were not observed again until 11:00 p.m. when they were seen entering an elevator on the ninth floor and taking it down to the main floor. They then stayed on the same elevator and took it up to the third floor where they exited the elevator. They were next observed returning to the Apartment at 11:43 p.m. at which time Mr. Edwards opened the door with a key and they both entered. As I will come to, he was arrested when he left the Apartment just after midnight.
[15] On each of the three days a number of men and women were observed going into and out of the Apartment. Some may have stayed overnight in the Apartment but because the police surveillance was not 24/7, I am unable to determine how many people were in the Apartment save for the period just before Mr. Edwards and others were arrested. In each case, someone from inside the Apartment let the person or persons into the Apartment. Only Mr. Salim and Mr. Edwards were seen entering the Apartment with a key.
[16] The length of time that people stayed in the Apartment, in the cases where they were seen both entering and exiting, varied. In some cases it was more than an hour, and in other cases it was only for a minute or so. Some exited the Apartment and returned soon after and were not seen leaving. Others left and were not seen returning to the Apartment.
The Arrest of Mr. Edwards and the others who had been in the Apartment
[17] On June 3rd, the following observations were made:
a) a man later identified as Richard Hennigar was seen being let into the Apartment at 8:22 p.m. and he left at 8:30 p.m. at which time he was arrested and found in possession of a small package of marijuana, a glass pipe with a small amount of what the officer believed was crystal methamphetamine in it and the officer who arrested Mr. Hennigar observed that the pipe was hot with Kleenex wrapped around it;
b) at 8:11 p.m. a male later identified as Damien Solomon was seen leaving the Apartment. He must have returned to the Apartment without being observed by the officers because as I will come to, he was next seen at 12:10 a.m. on June 4th leaving the Apartment with Mr. Edwards, Mr. Salim and Mr. Ostos. When Mr. Solomon was arrested no drugs were found on him;
c) at 9:13 p.m. a man later identified as Glenord MacLaughlin was let into the Apartment and he left seven minutes later. When he was arrested, he was found in possession of a small amount of marijuana;
d) Mr. Edwards, Mr. Salim, Mr. Solomon and Mr. Ostos were observed exiting the Apartment and walking towards the stairwell at 12:10 a.m. on June 5th. Mr. Edwards was arrested on the 26th floor. No drugs were found on him at the time of his arrest. When Mr. Salim was arrested, he was found in possession of 15.44 grams of crystal methamphetamine and it is agreed that this is a quantity consistent with possession for the purpose of trafficking.
The execution of the search warrant
[18] There is no dispute that the safe that Mr. Edwards was observed to be carrying was found locked on a short chest of drawers in the bedroom and that it contained 19.07 grams of heroin wrapped in one piece in plastic inside a single zip lock bag. The safe was not seized, but photographs of it both before it was opened and after it was opened were introduced into evidence. The safe is black with both a keypad and what appears to be a place to use a key on the door and based on the size of some letters found inside the safe I would estimate its actual size as one- and one-half feet wide by 10 inches high. The depth looks about the same as the width. There is no dispute that the safe found in the bedroom of the Apartment was the same safe that Mr. Edwards was seen carrying.
[19] Two letters found inside the safe were seized. They were both from the City of Toronto, Employment and Social Services and addressed to Mr. Edwards at the address of the Apartment. One letter with a black postmark had been opened and inside there was a notice from the City that $330 for the period May 1 to May 31, 2017 had been directly deposited into his bank account on April 28, 2017. The other envelope with a red postmark with a date of May 9, 2017, had not been opened. It contained a letter dated May 8, 2017 advising Mr. Edwards that his financial assistance on Ontario Works was on hold because they had not been able to reach him.
[20] Officer Lamour, who was the officer who opened and searched the safe, testified that he looked through the items in the safe before pictures where taken of the inside of the safe. He agreed that the bag of heroin in the safe clearly appears to be open, but he could not recall if he opened it or not. In addition to the heroin and the two letters addressed to Mr. Edwards, Officer Lamour testified that the only other items found in the safe was a toothbrush, an empty brown wallet, a bottle of cologne and some other papers that he could not describe. Photographs of these items were not taken although one of the papers is visible in the photographs of the safe taken after the search and it too has Mr. Edward’s name on it. Mr. Edwards was not able to identify what this document was. Officer Lamour also pointed out what appears to be part of the brown wallet that is visible under these papers. There is no picture of the toothbrush or the cologne. In cross-examination, Officer Lamour testified that there were no “details” about the cologne or the toothbrush, such as the brand of cologne or the colour in his notes and he could not recall what these items looked like. He could not recall if the cologne was in fact perfume nor what he did with these items. He assumes that he left them behind.
[21] Three scales were found in the Apartment. Two were found on the dining room table in the bedroom and one was found in the top drawer in the kitchen. I have no evidence as to whether any of these scales were in working order.
[22] At the time of the search, a TV in the bedroom was on streaming a view of the front lobby of the building. This video was streaming from a security camera in the lobby and there was no suggestion that it was a video not accessible to any other tenant in the building.
[23] The dining room table in the bedroom was a mess with all sorts of items on it including food and pieces of mail. The items of interest are a syringe, a plastic bottle that appears to have been used as a bong to use marijuana and a grinder for marijuana. There are two small zip lock bags but based on what can be observed it seems likely that they had been used and were not new. These items were not seized. There was also a little white residue on the table, but I have no evidence as to what that was.
The Agreed Statement of Facts – the Expert Evidence
[24] A drug expert was not called, but the type of evidence that would normally be heard in such a case was entered through the ASF.
[25] It is agreed that the approximate street value of the heroin found in the safe in 2017 for the City of Toronto was approximately as follows:
i) Approximate street values in the City of Toronto for heroin in 2017:
“Hit” .02 grams $30 to $50
½ gram $150 to $200
1 gram $240 to $300
1 ounce [28.35 grams] $3400 to $4500
Kilogram $80,000 to $110,000
ii) Due to the highly unstable nature of the availability and demand of illicit drugs, these prices will continually fluctuate. Variances in the street and bulk value can range between 10 to 50 percent at any time.
[26] Prices of illicit drugs will continually fluctuate based on a number of factors including: availability and demand, quality or purity, and the relationship between user and purchaser.
[27] Methods of use:
i) Heroin is typically either smoked or injected.
ii) The users of methamphetamine can be expected to be in possession of items such as rolled-up bills, syringes, and/or straws.
[28] Possession for the purpose of trafficking:
i) 19.07 grams of heroin is a quantity consistent with possession for the purpose of trafficking.
ii) 15.44 grams of methamphetamine is a quantity consistent with possession for the purpose of trafficking.
iii) Scales may be used to weigh drugs for distribution or resale. Scales may also be used by purchasers and users to weigh drugs.
The evidence of Mr. Edwards
[29] Mr. Edwards described his difficult upbringing and his ultimate placement into a group home. He left when he was 17 and essentially was on the street for a time. He is now 35. He did not finish high school and described his sporadic employment over the years.
[30] Mr. Edwards testified that at the time of his arrest he had been living in an apartment in Scarborough with his surety, Taylor, and her daughter for just over one month. Before that he admitted that he lived at the Apartment with Mr. Abebe who he called Sully, for five to six months, and prior to that he spent about a year in British Columbia. He had met Mr. Abebe before he went to British Colombia, through a friend whom he called Uncle Jed whom he was living with on the 18th floor of 200 Wellesley. Mr. Abebe came to Uncle Jed’s apartment a lot to play video games, smoke marijuana and hang out. This was also where Mr. Edwards met Mr. Salim, who at the time of his arrest was a good friend. Mr. Edwards testified that he also met Ms. Thompson at Uncle Jed’s apartment, before he went to British Columbia, and he described her as a “working girl” and as his best friend. Mr. Edwards testified that he met all of these people around nine years ago, but that Uncle Jed had moved out of the building by the time he returned from British Columbia.
[31] When Mr. Edwards returned to Toronto, he spoke to Mr. Salim and asked him if he knew of a place where he could stay. Mr. Salim told him that he had asked Mr. Abebe who agreed he could stay at the Apartment until he found his own place. He did not pay Mr. Abebe rent but if he had money, he would buy groceries and if not, he obtained food from a food bank to ensure there was always food in the Apartment. At that time, Mr. Edwards was on social assistance receiving $320 to $342 per month. He received his monthly statements stating the amount deposited to his bank account and a drug benefit card and any correspondence from Employment & Social Services by mail at the Apartment. The drug benefit card gave him access to any medications he might be prescribed. He supplemented his income by doing “dates” that he found on the Internet by posting ads or on the street and for that he was paid between $200 to $400 depending on the service he provided.
[32] Mr. Edwards testified that once he was staying at the Apartment, that he slept on the futon, which when he was living in the Apartment was in the living room. Mr. Abebe slept on the mattress in the living room – he did not sleep in the bedroom of the Apartment. He saw Mr. Salim in the Apartment every day and believed he was also living there. Mr. Salim had his own key to the Apartment. Ms. Thompson was now also staying at the Apartment although as I will come to, she spent a lot of time with a friend on a different floor in the building.
[33] Mr. Edwards described the Apartment as a “party house”, which was mostly occurring in the bedroom with the door closed. He would hear loud music and sometimes people screaming and breaking stuff. Some nights were crazier than others. In addition to those who lived in the Apartment, Mr. Edwards testified that other random people spent time in the Apartment too, coming off the street to find a safe place to hang out and do their drugs or to take a shower or sleep on the floor. He did not know the names of all of them and spent most of his time, when he was in the Apartment, in the living room. There he played a lot of video games on his phone and smoked marijuana with Mr. Abebe or a couple of friends that used to come over. Mr. Edwards testified that Mr. Salim spent most of his time in the bedroom and that he would go there when he needed to get some more marijuana or to smoke a joint, but he did not spend that much time in the bedroom.
[34] Mr. Edwards testified that he moved out of the Apartment about a month before his arrest and moved in with Taylor, his surety, to her place which he said was a better and safer place. He was not concerned about his personal safety in the Apartment but testified that anything of value lying around in the Apartment would be stolen and so if he was going to fall asleep he would have to put his cell phone and his wallet in his pocket so people would not try to take them.
[35] In cross-examination, Mr. Edwards admitted that because the Apartment was not very livable, that although it was a good place to hang out, that he would have moved out right away if he had found a place to move to. He did add that he did not judge people who were in the Apartment for what they did and in particular the fact that they were doing drugs because he was doing dates, which he testified was hard to say but was the truth. He also testified that although he did not see anyone selling drugs that if they were selling drugs it would not matter to him. The exception was Ms. Thompson because he cared about her and he did not like the fact she was using drugs. However, he did not feel it was his place to tell her not to.
[36] Mr. Edwards was challenged by the Crown with the fact that he had not asked his surety to let him go to her place to live when he was first released from custody. Mr. Edwards explained that she showed up at the Apartment one day and saw his living conditions and told him that her place was 10 times better and that he should come and stay with her. Although they were very good friends – he ranked her even higher than Ms. Thompson, Mr. Edwards testified that it had not crossed his mind to ask her if he could move in. He added that when you don’t have a place to live, you don’t want to make someone else’s life harder. He said that she had a daughter and that he did not ask her.
[37] At this point in the cross-examination Mr. Edwards volunteered that when he was in the “bull pen”, Mr. Ostos found some methamphetamine in his pocket that the police had not found in their searches and that Mr. Salim grabbed it and put it in a cup and they all drank some. As a result, he said that he was high for a week. I will come back to the significance of this evidence in my assessment of Mr. Edwards’ credibility, but suffice it to say here that this evidence came out of the blue, was not responsive to any question. It appeared to me that Mr. Edwards told the Court this because it is what led to Taylor, his surety, helping as he put it, to get him sober and back on his feet.
[38] After moving out of the Apartment, Mr. Edwards testified that he still returned to the Apartment every day because it was the place where he conducted his “business” and checked his messages and met people for dates because the Apartment was downtown. People from the building would also call him if they needed help with something, for example with carrying groceries and he would earn a bit of money that way as well.
[39] If Mr. Edwards came in the early morning, he would knock on the Apartment door and someone would let him in. He also testified that Mr. Abebe would lend him his key every now and then so that he did not have to wait in the hallway. He said that he never had his own key to the Apartment. This evidence was not challenged in cross-examination and explains why on two occasions police observed Mr. Edwards entering the Apartment with a key.
[40] There is no dispute that mail was brought to the Apartment and put through the mail slot which is near the bottom of the door to the Apartment and that the mail would then fall onto to the floor. Mr. Edwards testified that whoever was close by would pick it up. He also said that whoever grabbed the mail might keep it if it seemed to be of value. According to Mr. Edwards, Mr. Abebe had four or five people using his Apartment address for mail.
[41] Mr. Edwards denied using any drugs in the May 2017 timeframe save for marijuana which he smoked. He also said that he did not drink alcohol. Mr. Edwards specifically denied using heroin or methamphetamine although he admitted that he saw other people put methamphetamine in a glass bowl and light it. They would usually do this in the bedroom or the bathroom. According to Mr. Edwards people used heroin in the Apartment because he would see needles on the table in the bedroom, but they never used it in front of him. He would know because he believed that the “high” from using heroin that they were trying to get would be to pass out, something that he did not understand or like. Mr. Edwards testified that Ms. Thompson used both heroin and methamphetamine at the Apartment but again said that she did not use heroin in front of him.
[42] Mr. Edwards was shown many of the photographs taken by Officer Hameed. He admitted that there was lots of drug paraphernalia in the bedroom. He identified the purple grinder on the table in the bedroom but said that he preferred to use scissors to break up his marijuana buds. He said that the two scales on the table were not his but that he and “everyone” used them because some people would try to give you less than what you paid for. Mr. Edwards testified that the armchair in the bedroom belonged to Mr. Salim. The wood on one of the arms of this armchair has the word “Ali’s” burned into it, which confirms this. Mr. Edwards testified that no one else was allowed to sit in this chair. He confirmed that the television in the bedroom was showing the front lobby in the photographs but denied putting it on or knowing why it was on at the time of his arrest. Mr. Edwards explained that to buzz Mr. Abebe’s Apartment, there was an intercom attached to a phone line. He was not asked if Mr. Abebe had a phone in the Apartment that would allow him to answer the buzzer and none is visible in any of the photographs.
[43] Mr. Edwards readily identified the safe in the bedroom. He testified that it was not his safe and that he picked it up from his friend Daniel’s house on Parliament Street within 24 hours of his arrest. He had seen the safe at Daniel’s before and he was not sure if he was using it or not. Mr. Edwards testified that he got the safe for Ms. Thompson because she had been complaining about the fact that her belongings would go missing from the Apartment. He had asked her first if she wanted a safe and she had said yes. Mr. Edwards explained that he went to get the safe because Daniel and Ms. Thompson did not get along. He was only at Daniel’s long enough to smoke a joint with Daniel. He had told Daniel that the safe was for Ms. Thompson and according to Mr. Edwards, Daniel said that she could use it. He did not give Daniel any money for the safe and there was no discussion of how long Ms. Thompson could keep the safe. Mr. Edwards guessed that Daniel let him have the safe for Ms. Thompson because of his good friendship with Daniel. Mr. Edwards testified that he had a falling out with Daniel about one month before the trial. Although they were good friends for about 12 years, he did not remember his last name.
[44] Mr. Edwards testified that when he picked up the safe, he knew it was not locked because the door flung open. He admitted that there is a keypad on the safe and that he did not ask Daniel what the combination was and that he did not know the combination for the safe. Mr. Edwards did testify that Daniel told him that everything was “reset” and good to go and so he assumed it was OK. He saw a set of two keys in the safe but admitted that he did not know if they were for the safe or not.
[45] Mr. Edwards testified that he carried the safe against his side so the door would not fly open as he walked back to the Apartment. This is consistent with the officers who saw him walking with the safe. They admitted that they could not tell if the safe was locked as Mr. Edwards carried it. Once there, Mr. Edwards testified that he left the safe in the living room on the table besides the couch with the door closed. He did not lock the safe. Ms. Thompson was not there at the time. He smoked a joint with Mr. Abebe and he left the Apartment and went home to Scarborough where he spent the night. When he returned to the Apartment the next day, he did not see the safe in the living room, but Mr. Edwards admitted that he saw it in the bedroom next to Mr. Salim’s chair. The door to the safe was closed, and he did not try to open the safe. Mr. Edwards denied putting anything in the safe or seeing anyone put anything in the safe.
[46] Mr. Edwards confirmed that the two pieces of mail found in the safe were addressed to him but said that he had not seen these particular pieces of mail and did not know that this mail was at the Apartment. He saw it for the first time after his arrest and denied putting this mail in the safe or that he opened the one piece of mail that was found in the safe to have been already opened. Mr. Edwards also testified that he did not recognize anything else in the safe including the bag of heroin, that he had not seen the heroin before, nor had he put it in the safe. It was not his heroin. Mr. Edwards said that there was nothing remarkable about letter in the unopened envelope as it simply said that he was being kicked off social assistance. The statement, however, was of value because if he had got sick in May, he would have needed the drug benefit card on the statement to get any prescription medication. He admitted that it was of no value to anybody else. Mr. Edwards was asked about the top document that can be seen in the safe when it was opened but was not seized. He admitted that his name was on this document and that he could see the word “credit”, but he had no idea what it was and testified that he had not seen a similar document.
[47] Mr. Edwards testified that just before his arrest he was at the Apartment with Mr. Abebe, Mr. Salim, Damien Solomon, and David Ostos and that he was going to get some marijuana from another apartment on the 23rd floor of the building with Mr. Ostos.
[48] Finally, at the end of his cross-examination Mr. Tsai put to Mr. Edwards that he and Mr. Salim were dealing drugs from the Apartment. Mr. Edwards denied this and testified that he did not have to sell drugs because he found other ways to make money. He stated that: “really and truly selling drugs is not worth the jail time to be 100% honest” and that he knew this because he had friends and had heard “stories” – I presume about sentences handed out following drug convictions.
The evidence of Ms. Thompson
[49] Ms. Thompson began her evidence by stating that Mr. Edwards had been charged with narcotics – the heroin in the safe, and that she had put the heroin in her safe. She described him as her best friend but that he was never her boyfriend. She met him through Uncle Jed, she thought close to seven years earlier.
[50] Ms. Thompson testified that in May/June 2017 she was living in the Apartment and was paying Mr. Abebe $150 per month in rent and providing him with some groceries. She had been living on the street and Mr. Edwards introduced her to Mr. Abebe. She was renting an area in the Apartment that started off in the living room and then the bedroom and then back to the living room because someone “kept moving me around”, which I assume was a reference to her belongings. She would sleep on the couch in the living room. Ms. Thompson testified that she spent a lot of time with a man named Rick on the third floor and sometimes slept there and also with Rene on the 24th floor and “so many places” in the building at 200 Wellesley.
[51] Ms. Thompson testified that the Apartment was a spot where people who were homeless would bring their drugs to get high. She said that Mr. Abebe would not listen to her and would open his door to anyone and let them in because they would give him some dope. There were always people in the Apartment using drugs. Ms. Thompson testified that Mr. Salim was getting drunk all the time and kicking doors off in the Apartment but that he was not dealing drugs to her knowledge or even using drugs although she said that he could be a “closet user”. She insisted that when she was in the Apartment no one was selling drugs and anyone who came in to use drugs brought the drugs with them. She also said that she would not have tolerated drug trafficking in a place where she “rested my head”. In the building, according to Ms. Thompson, you could get drugs anywhere and so it would not have been necessary for a drug trafficker to set up in the Apartment. Ms. Thompson went on to say that dealers and users do not mix.
[52] At the time Ms. Thompson was receiving $1,300 monthly from the Ontario Disability Support Program and supplemented her income by working as an “escort” earning as much as $700 a day, whenever she needed money to support her drug addiction. She also cleaned houses and acted as a caregiver and ran errands for drug dealers – not delivering drugs but rather getting them food or drinks.
[53] Sadly Ms. Thompson testified that she first used heroin when she was only 12 years old when her mother gave her some because of menstrual cramps. She started to use heroin seriously when she was 24 and by this time, she was using it every day and using anywhere from a gram to a “half ball” which she said was three grams, if she could afford it. Ms. Thompson testified that Mr. Edwards knew that she used heroin, but she did not do it in front of him because he hated it. He had tried to “dry” her out at a time when she was losing custody of her children. She admitted that she had smoked methamphetamine in front of Mr. Edwards, although not very often. In cross-examination Ms. Thompson’s use of other drugs and alcohol was also explored including times when she was clean. A number of questions were directed in cross-examination to the drug use of Uncle Jed and another woman that Ms. Thompson knew long before the events in issue, which were not relevant. Despite the tragic circumstances of her life, such as losing custody of her children due to her drug addictions, Ms. Thompson was able to earn two College degrees and was also able to earn some money completing tax returns for others.
[54] Ms. Thompson described her purchase of the heroin. She said that she purchased the heroin from a man named Mr. Lee who had been one of her escort clients for three or four months who lived on the 21st floor of 200 Wellesley. She only saw him once after the police raid on Mr. Abebe’s apartment and after that he was no longer in the building. As far as she knew, Mr. Lee was not in Canada anymore.
[55] Ms. Thompson testified that she bought an ounce of heroin from Mr. Lee for $1,000. This was the only time she bought heroin from him. She did not weigh it and so she did not know if it was exactly an ounce or not, but it was very good and very potent heroin and was very cheap. Ms. Thompson testified that the price would normally have been double or triple what she paid. Ms. Thompson said that she could never afford an ounce by herself, but she had intended to share it with a girlfriend and a couple of others as they would “help each other out”. She testified that if one of her friends had heroin and she did not, that friend would help her out and she would do the same when she had heroin so that no one would ever get sick. She intended that this heroin help everyone in her circle. Even if she used it on her own, Ms. Thompson testified that she would go through this amount in a week and a half.
[56] Ms. Thompson testified that she was trying to wean herself off heroin at the time of this purchase. She was then naturally asked why she would buy such a large quantity of heroin. Ms. Thompson explained that her plan was that she would give it to someone she trusted who was not a drug user and that they would then give her small amounts to allow her to taper off her drug use like a methadone program. She did not have a chance to do this because of the police raid on the Apartment.
[57] When asked in cross-examination why Mr. Lee gave her such a good deal on the heroin, Ms. Thompson testified that she had no idea and did not ask those kinds of questions, but she guessed that he wanted to get rid of the heroin, possibly to buy tickets to leave the country or that it was because he liked the fact she was an honest working girl who did not try to rip him off. She admitted that she had never got such a good deal before this although she had got some good deals since.
[58] Ms. Thompson testified that she brought the heroin to the Apartment and took out about three to four grams so that she could let her friend Rene and one other friend try it.
[59] With respect to the safe, Ms. Thompson testified that Mr. Edwards got the safe from his friend Daniel because people kept stealing her stuff. She said that items like her cell phone, jewelry, keys and cheques - anything that could not be nailed down, would be stolen. She would have picked the safe up herself, but she did not like Daniel very much. Later in her evidence she testified that he had sexually assaulted her. According to Ms. Thompson, Mr. Edwards left it in the Apartment for her on the table in the living room. She was unsure of dates but testified that she had it maybe two days before the raid. She thought it was in the afternoon and she came back the Apartment late on the same day. She started using it the next day. She moved it to the bedroom and threw all the “crap” from her purse into the safe, including the heroin, save for what she took out to bring to Rene. In further questions Ms. Thompson testified that she put her toothbrush in the safe. Ms. Thompson testified that she locked the safe once or twice with a key that had been left in the safe.
[60] With respect to the two pieces of mail for Mr. Edwards found in the safe, Ms. Thompson testified that they were on the table in the living room and that she put them in the safe when she moved the safe to the bedroom. She did it by “instinct” because a lot of Mr. Edward’s mail was stolen. In cross-examination Ms. Thompson explained that the mail had actually been on the floor and that she had picked it up and tried to hide it on the table between two pieces of junk mail. She denied opening the mail and said she would never open Mr. Edwards’ mail unless he asked her to. She had planned to message Mr. Edwards that his mail was there but her life was pretty hectic at the time, so I took it that she never did. She also said that she would have told Mr. Edwards where she hid his mail but that she did not see him in the Apartment at this time. Although she was at the Apartment every day, they were never there at the same time. Ms. Thompson testified that she did not tell Mr. Edwards she had put his mail in the safe because she did not see him again before the police raid.
[61] Ms. Thompson testified that she had planned to come right back to the Apartment but ended up not doing so. News travelled fast in the building and when she heard about the police raid, she felt “awful” because she knew that when Mr. Edwards was arrested that the police would connect the heroin to him because of his mail.
Analysis
Assessments of Reliability and Credibility
[62] I now turn to my analysis. Since Mr. Edwards testified and called a witness whose evidence, if true, provides him with a complete defence, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply[^2]. I must acquit Mr. Edwards if I believe his and/or Ms. Thompson’s evidence or, even if I do not believe either him or her, I am left in a reasonable doubt by this evidence. If I am not left in doubt by their evidence, then I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Edward’s guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction, that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^3] Further, in assessing the evidence of the Defence witnesses, I am entitled to consider it in the context of all of the other evidence.[^4]
(a) Mr. Edwards
[63] Mr. Edwards admitted that he has a dated criminal record. He was convicted as a youth in 2001 for mischief, possession of proceeds of crime of less than $5,000, possession of break and enter instruments and failure to comply with his recognizance. In 2007 as an adult, Mr. Edwards was convicted again of mischief under $5,000 and failure to comply with his recognizance. Although his criminal record includes some crimes of dishonesty and breach of court orders, given how long ago these convictions were, in my view they have little if any effect on his credibility.
[64] I found Mr. Edwards to be a very fair and matter-of-fact witness whose demeanour remained unchanged when he was cross-examined. He was responsive to all of the questions asked by the Crown. There was no challenge to the reliability of his evidence, only his credibility.
[65] Not only was Mr. Edwards responsive to the Crown’s questions, on one occasion he volunteered evidence that he did not need to, that I have already set out, about his consuming methamphetamine in the bull pen, which did not put him in a good light with this Court as he was assisting in the disposal of evidence. Mr. Tsai argued that this evidence suggested that Mr. Edwards’ evidence that he was not a drug user must be untrue because if that were the case, he would have refused to take any of the methamphetamine and let the others consume the drug. That is possible but given the way this evidence came out and the fact that Mr. Edwards did not have to disclose this fact, in my view it illustrates that he was being completely honest in his evidence. Furthermore, there is absolutely no other evidence that Mr. Edwards used heroin.
[66] Much of Mr. Edwards’ evidence on some of the peripheral points was not challenged in cross-examination. As Ms. Audet submitted, he gave a coherent narrative that was virtually unshaken in cross-examination. Mr. Tsai submitted that there were internal inconsistencies in Mr. Edward’s evidence but in fact he did not point to any, nor in my view were there any. What Mr. Tsai appeared to mean by this submission was that aspects of Mr. Edwards’ evidence was simply not believable. I will come to those submissions.
(b) Ms. Thompson
[67] Ms. Thompson was convicted once, back in 2014, for possession of a Schedule I and II substance. In my view these convictions have no impact on her credibility as a witness. She has clearly been a drug user for most of her life. There are concerns about the reliability of Ms. Thompson’s evidence but those, by her own admission, relate primarily to her remembering dates, given at the time in question she was often high because of her addiction to heroin. Her memory of dates, however, in terms of when she said that she was given the safe by Mr. Edwards was pretty close and in any event her difficulty with dates and details of that sort do not impact on her evidence in this case. Furthermore, there was no suggestion from the Crown nor based on my own observations that Ms. Thompson was under the influence of any drugs when she testified.
[68] When I asked Mr. Tsai what his position was with respect to the evidence of Ms. Thompson about the heroin, his first response was that she was a defence witness as if that was enough of a reason to disbelieve her. He also submitted that her evidence that on this one occasion she bought such a large quantity of heroin was very “convenient” and that as a good friend of Mr. Edwards she would lie for him. When I asked how he could explain how Ms. Thompson knew roughly about the quantity of heroin found and the other items found in the safe he suggested that she would have been prepared to give this evidence, implying that someone had given this information to her before she testified. Mr. Tsai implied this would have been Mr. Edwards, whom he suggested would do whatever he needed to, to “save his own skin”.
[69] One of the difficulties with this submission is that Mr. Tsai never asked Ms. Thompson what she knew about the Crown’s case before she testified, whether or not she had seen any of the disclosure, whether or not she had discussed her evidence with Mr. Edwards or if she had met with Ms. Audet or other counsel. When I pointed this out to Mr. Tsai, he suggested that he could not have asked whether or not Ms. Thompson had met with Ms. Audet but that does not explain why he did not ask these other questions. Furthermore, in my view his position that he could not have asked if Ms. Thompson had met with Ms. Audet or other counsel is not correct. Although Ms. Audet would have had no obligation to disclose that she had met with Ms. Thompson or what Ms. Thompson had told her, there would have been no privilege in the information that she obtained. Ms. Audet was perfectly entitled to meet with any possible witness and that witness could be asked at trial about the meeting and certainly whether she learned any information about the Crown’s case. Furthermore, there is no suggestion that there was any breach of my order excluding witnesses. For these reasons, I reject Mr. Tsai’s submission that I could conclude that Ms. Thompson knew the details about the Crown’s case and in particular about what was found in the safe.
[70] Overall, I found Ms. Thompson to be a credible witness. She was articulate, candid and her evidence was internally consistent. Ms. Thompson has clearly had a difficult life and even though Crown counsel pried unnecessarily into her use of drugs and other matters, her demeanour in cross-examination did not change. She responded to the Crown’s questions even when the subject matter was difficult and readily admitted conduct that did not put her in a favourable light.
Has the Crown proven beyond a reasonable doubt that Mr. Edwards possessed the heroin police found in the safe?
[71] I turn then to the central question: did Mr. Edwards know that heroin was in the safe in the Apartment?
[72] Mr. Tsai initially argued that it was inescapable that the Apartment and in particular the bedroom was being used as a drug den/lounge and a place for drug dealers and users to meet. Later he said that at least the evidence is not inconsistent with this proposition. I presume he made this submission to bolster his argument that Mr. Edwards was one of those people dealing drugs from the Apartment.
[73] It is true a considerable number of men and some women visited the Apartment during the short time that the police made their observations, but that evidence is consistent with the evidence of Mr. Edwards and Ms. Thompson that the Apartment was being used by people to consume their drugs, particularly given that some people who entered the Apartment were observed to remain in the Apartment for an hour or more. It is true that in some cases people went into the Apartment for only a minute or so and I appreciate that that could suggest drug trafficking, but none of those people were detained and so without more I could not conclude that they went to the Apartment to buy drugs.
[74] Furthermore, the drug paraphernalia seized from the Apartment and can be seen in the Apartment is not suggestive of drug trafficking. The strongest evidence is the two scales found on the table in the bedroom but there is no evidence that they were even functioning. The scale in the kitchen could well have been used for cooking. In any event, as set out in the ASF, although scales may be used to weigh drugs for distribution or resale, they may also be used by purchasers and users to weigh drugs. That does not mean that the person who buys drugs necessarily weighs the drugs in the place where they were purchased.
[75] There were two small clear plastic baggies on the table in the bedroom, but they do not appear to be new and could well have been from drugs purchased elsewhere and brought to the Apartment and consumed there. The syringe, bong and grinder are all consistent with drug use, not trafficking. I have considered the fact that the television in the bedroom was displaying the lobby of the building and therefore showed people as they came into the building, but this was perhaps the only way for someone in the Apartment to see who was there in order to buzz them into the building. Furthermore, it is significant that this was surveillance video from a security camera installed by the landlord. I could not conclude that this evidence suggests that the lobby was being watched for the purpose of drug trafficking. This is not like the case of R. v. DeMarco[^5] where the trial judge relied in part on the fact that two monitors in the apartment were connected to a private surveillance system installed on the exterior of the building that focused on the entry area to the unit allowing surveillance of who came to the door, not the backyard as the defendant testified it was.
[76] The Crown relies heavily on the fact that when Mr. Salim was arrested, he was found in possession of 15.44 grams of crystal methamphetamine and the fact that it is agreed that this is a quantity consistent with possession for the purpose of trafficking. Mr. Tsai argued that in the context of all of the other evidence that there was a “very strong, powerful, irresistible inference” that Mr. Salim was a drug dealer and dealing out of the Apartment. I disagree. I have already dealt with what was found in the Apartment apart from the heroin. Furthermore, the quantity of methamphetamine found on Mr. Salim does not mean, in the absence of any more evidence, that these drugs were in fact in Mr. Salim’s possession for the purpose of trafficking. There were no observations made by police of Mr. Salim trafficking in any drugs and I note that police also found in his possession a $20 bill tightly rolled and held that way by what appears to be a hair elastic. According to the expert evidence admitted on consent, this is one way that crystal methamphetamine is used.
[77] In addition, when Mr. Hennigar was arrested, he was only found in possession of a small package of marijuana and a glass pipe with a small amount of what the officer believed was crystal methamphetamine in it that was still hot. This suggests that Mr. Hennigar likely used the pipe to smoke some crystal methamphetamine inside the Apartment. Since he was not found with any more of this drug this evidence does not suggest that he purchased methamphetamine in the Apartment.
[78] When Mr. MacLaughlin was arrested, he was only found in possession of a small amount of marijuana. Finally, when Mr. Solomon and Mr. Edwards were arrested no drugs were found on them. In addition, the only drugs found in the Apartment during the search was the heroin. The heroin, however, was not packaged in a way that would suggest it was ready to be sold. It was in a single large quantity, not divided into smaller weights in individual plastic bags for resale.
[79] Mr. Tsai submitted that the fact Mr. Edwards was familiar with the effects on someone using different drugs and that he testified he did not judge people who used drugs was consistent with him being a drug dealer. In my view, given that Mr. Edwards associated with people who used drugs explains how he generally knew the effects of the drugs. Mr. Edwards did not try to distance himself from the drug activity in the Apartment. His evidence that he was not a drug user was not challenged in cross-examination. When he said that he did not judge people who used drugs he stated again that he did dates to make money as if to say, how could he judge them. That was, in my view, a credible explanation. This was clearly a difficult admission for him to make and I accept that evidence. Mr. Edwards’ explanation for why he did not sell drugs also makes sense. He was able to earn a living by as he put it “selling myself” and he knew that selling drugs was not “worth the jail time”.
[80] Mr. Tsai suggested that Mr. Edwards’ evidence of why he stayed in the Apartment even though he did not like living there was not believable because had he really wanted to leave, he could have asked Taylor, the woman who became his surety, if he could move in with her. I have set out Mr. Edwards’ explanation for why this did not occur to him. Mr. Edwards did have a roof over his head, he was accustomed to being homeless and he did not want to burden his friends. His explanation is not unreasonable.
[81] For these reasons I do not find that there is evidence that the Apartment was being used by anyone for drug trafficking. I do find it was a place where lots of people were allowed entry for the purpose of consuming drugs that they had already acquired. This is consistent with the evidence of the officers about the general reputation of 200 Wellesley at the time and is corroborated by the evidence of Ms. Thompson. Even if I were satisfied that the Apartment was being used by Mr. Salim or someone else as a place for selling drugs, that of course would not lead to a conclusion that Mr. Edwards was also dealing in drugs.
[82] I have considered the fact that Mr. Edwards had a key to the Apartment which he used on two occasions that the police observed, but I could not conclude on this issue that his explanation that Mr. Abebe would let him borrow the key was not true. This evidence was not challenged in cross-examination. In any event, the fact that he used the key to enter the Apartment does not suggest that he necessarily kept the key once he was inside or when he left the Apartment. I note there is no evidence that the key to the Apartment was in his possession when he was arrested.
[83] In this case, at first blush, the observations made by the officers of Mr. Edwards obtaining a safe and bringing it to the Apartment and then the presence of the heroin found shortly afterwards in the safe with Mr. Edward’s mail does suggest that he must at least have known about the heroin. Mr. Tsai relies on R. v. Emes[^6] but that case is clearly distinguishable because the court approved the proposition that as a general rule personal papers are kept in a location whether a person has access and control in the context of a residence and in a case where the defendant did not testify. That is not this case. Mr. Edwards has not suggested that he did not have access and control of the Apartment, even though he had moved out. Quite the contrary. He admitted that he was there every day.
[84] Mr. Edwards has admitted that he brought the safe to the Apartment, but he denies that he put anything in the safe or that he even brought it to the bedroom. He was never seen in possession of the heroin and although he was seen in possession of the safe, there is no evidence to contradict his that when he brought the safe to the Apartment it was unlocked. There is also no evidence that after Mr. Edwards brought the safe into the Apartment that he had further contact with it.
[85] I have concluded that the explanation provided by Ms. Thompson about her purchase of the heroin and putting the heroin and Mr. Edwards’ mail and some of her other belongings into the safe is true. I appreciate that some of her evidence is more difficult to believe particularly as she admitted that she had never bought such a large quantity of heroin before and certainly not at this price. Nevertheless, for the reasons I will come to, I do believe her evidence and the evidence of Mr. Edwards. My reasons are as follows.
[86] I have considered the fact that although Mr. Edwards admitted that he went to the Apartment every day, he said that he did not see the two pieces of mail addressed to him. I also accept that given the date of the postmark on the unopened letter and the content of the other that it is likely that they were mailed and deposited into the mail slot of the Apartment door by mid-May. The issue that raises is why did Mr. Edwards not see them given his admission that he was at the Apartment every day.
[87] Given the state of the Apartment, as evidenced by the pre-search photographs taken by Officer Hameed, I find that Mr. Edwards’ evidence that he did not see these two letters could reasonably be true. To state that the Apartment was a mess is an understatement. Furthermore, what could be mail is visible in the Apartment on the very messy table in the bedroom, on the table at the end of the mattress in the living room and on the kitchen floor. Furthermore, and perhaps most importantly, Ms. Thompson testified that she hid the letters under some junk mail and that she and Mr. Edwards were not running into each other at the Apartment at the time. She explained why she had not yet told him that she had done this. Furthermore, if Mr. Edwards saw the unopened letter, it makes no sense that he would not have opened it. In addition, as Ms. Audet submitted, if Mr. Edwards was prepared to lie, he could easily have said that he was only back to the Apartment twice, as observed by police, as a way to explain why he did not see the letters and yet he admitted that even after he moved to Scarborough, he returned to the Apartment every day. I therefore find that it is quite possible that Mr. Edwards did not see the unopened letter and that someone else grabbed the other letter and opened it, hoping to find something of value, and then since there was no cheque in the envelope, simply discarded the envelope with the statement back onto the floor or elsewhere in the Apartment and that he did not see this before his arrest.
[88] I have also considered the fact that although it would make sense to keep such a large quantity of heroin in a safe, to avoid it being stolen, it makes no sense that Mr. Edwards would have also put these two pieces of mail into the safe. The letter that was opened did have a drug benefit card which he said would be of value to him but not in my view of such value that he would have been foolish enough to put it in the same place as the heroin. Any discovery by police of the safe and its contents would obviously point to him. Furthermore, it makes even less sense that he would have put the unopened letter into the safe as he would have had no idea what it contained. He certainly would have known that it did not contain a cheque as his payments were being deposited directly into his bank account.
[89] On the other hand, Ms. Thompson’s explanation for why she put Mr. Edwards’ mail in the safe is what makes sense. They were best friends, mail was being stolen by various people who would come to the Apartment and it makes sense that she wanted to ensure that Mr. Edwards’ mail, which he had not yet received, was kept safe. In fact, on the evidence I find that the only reasonable explanation for why Mr. Edwards’ mail was in the safe was that given by Ms. Thompson. As I have said, the fact one of the letters had been opened is also consistent with what was happening in the Apartment.
[90] Furthermore, if I had had any doubt about whether or not there had been some collusion between Mr. Edwards and Ms. Thompson, the fact that Ms. Thompson testified that she put her toothbrush into the safe was information that she could only have known if her evidence was true. When I suggested this to Mr. Tsai, he submitted that she could have seen this information in the disclosure of the officer’s notes. He also suggested that because Ms. Audet did not challenge Officer Lamour’s evidence that there was a toothbrush in the safe, that this fact must have been in his notes. I pointed out at the time he made this submission, that I could not rely on the fact that Ms. Audet had not put such an alleged omission to Office Lamour to conclude that this was in his notes.
[91] When I reviewed the evidence again for the purpose of my deliberations, I realized that in cross-examination Officer Lamour in fact testified that there were no details about the toothbrush and the cologne in his notes. I appreciate that Officer Lamour did not say that there was no information about there being a toothbrush and cologne in his notes, but the fact he admitted the cologne could have been perfume suggests that may be the case and that he was relying on his independent recollection as to what else was in the safe since no photographs of these items were taken. In any event, I am not in a position to speculate about what was or was not in Officer Lamour’s notes about the toothbrush and certainly there is no evidence that Ms. Thompson was aware of this.
[92] What is even more important to this issue is that I do not believe that Ms. Audet even appreciated the significance of the toothbrush at the time Officer Lamour testified because the evidence about Ms. Thompson putting a toothbrush in the safe came out for the first time in the cross-examination of Ms. Thompson. If the Defence knew that Ms. Thompson was going to give this evidence I have no doubt that Ms. Audet would have asked her about this in her examination in chief.
[93] For these reasons, the only reasonable conclusion that I can come to is that Ms. Thompson’s evidence that she put her toothbrush along with the heroin and Mr. Edwards’ mail and the other items in the safe must be true as she would have had no other way of knowing that a toothbrush was found in the safe.
[94] Notwithstanding this conclusion, I will refer to some of the other arguments made by the Crown as to why I should not accept the evidence of Mr. Edwards and Ms. Thompson to explain why these submissions did not alter my view.
[95] The price Ms. Thompson paid for the heroin is a very good deal and that is not what is generally the case when someone sells drugs. It is also true that this was the first time she said that she had purchased such a large amount. That said, Ms. Thompson may have believed that she bought an ounce, but she clearly did not get an ounce. Given her evidence that she took out three or four grams, given that the weight of the heroin in the safe was just over 19 grams, and given an ounce is 28.35 grams, it is likely that Ms. Thompson only received 22 or 23 grams. Furthermore, it is significant that Ms. Thompson immediately volunteered the fact that she knew she got a good deal and that an ounce of heroin should have cost her two or three times more. That evidence is in line with the agreed evidence that the street value of an ounce would be in the range of $3,400 to $4,500. Perhaps what is most persuasive, however, is that had Ms. Thompson been prepared to lie, she could easily have said that she paid $3,000 for the heroin. That would have been possible given the amount of income she was receiving and earning. Furthermore, if Ms. Thompson were not being honest then I doubt she would have volunteered that at the time she wanted to ween herself off heroin as that seems inconsistent with the purchase of such a large quantity of heroin. Clearly, based on her evidence, Ms. Thompson was a very heavy heroin user and her purchase of this quantity of heroin, in her case, was consistent with personal use, particularly given her evidence that she would share with others in her circle. I appreciate that the timing of this purchase might be suspect, but the fact remains that she knew about the contents of the safe and her evidence as to why she purchased this quantity, given the price and quality of the heroin is reasonable.
[96] Mr. Tsai also argued that the fact that a toothbrush and cologne was in the safe suggested that the safe was in Mr. Edwards’ control because this is where he kept his toiletries and there were no signs of toiletries elsewhere in the Apartment. There are a number of problems with this argument. First of all, I have already explained why I accept Ms. Thompson’s evidence that it was her toothbrush that was in the safe. Secondly, Mr. Edwards was not asked where he kept his toiletries in the Apartment or for that matter, given his evidence that he had moved out a month earlier, if he even kept toiletries in the Apartment any more, let alone kept them in the safe.
[97] Mr. Tsai submitted that I should draw an adverse inference from the fact that the Defence did not call Daniel as a witness. I do accept that Mr. Edwards’ professed failure to recall Daniel’s last name is suspect but for the reasons that follow I do not see what Daniel would have added that would be relevant.
[98] Ms. Audet submitted that this is not one of those rare cases where an adverse witness should be made because a witness was not called by the Defence. She argued that the Defence had called the only witness who could explain how the heroin got into the safe and that it did not matter where Mr. Edwards got the safe from, particularly given the surveillance evidence that shows where Mr. Edwards went to get the safe and the fact that he brought it to the Apartment. In fact, she submitted that she failed to understand how Daniel’s evidence would have been important at all.
[99] In response to this Mr. Tsai explained that it was his position that the Defence should have called Daniel to prove that he gave the safe to Mr. Edwards which would establish that Mr. Edwards did not have possession of the safe before he was seen going into 537 Parliament Street. Mr. Tsai argued that Mr. Edwards had it before he was seen going to this address on Parliament Street. He argued that the safe was equivalent to Mr. Edwards’ briefcase. This was never suggested to Mr. Edwards when he was cross-examined and, in any event, quite frankly this submission made absolutely no sense. It is ridiculous to suggest that someone dealing drugs would be walking around on the street with a safe and that it would be where he would keep his drugs. Clearly the safe was not something that anyone would consider to be like a briefcase when they were carrying it out on the street. I can think of no reason why the Defence should have called Daniel as a witness. There is no adverse inference to be drawn.
[100] If I had not found that I believed the evidence of Mr. Edwards and Ms. Thompson, I would have had no hesitation in concluding that their evidence gave rise to a reasonable doubt as to whether the heroin in the safe belonged to Mr. Edwards. It is not necessary for me to consider, had I rejected their evidence, whether or not the Crown had proven its case beyond a reasonable doubt on the evidence led by the Crown.
[101] For these reasons I find Mr. Edwards not guilty.
Disposition
[102] Mr. Edwards would you please stand.
[103] For the reasons I have given I find you not guilty of Count 1.
_______________________
SPIES J.
Released: November 27, 2020
Edited Reasons Released: December 3, 2020
COURT FILE NO.: CR-20-90000180-0000
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DESTYN EDWARDS
Defendant
REASONS FOR JUDGMENT
SPIES J.
Released: November 27, 2020
[^1]: [1991] 1 S.C.R. 742.
[^2]: R. v. Fogah, 2018 ONCA 564 at paras. 49-56.
[^3]: See R. v. C.L.Y., 2008 SCC 2, at paras. 7, 9; R. v. J.H.S., 2008 SCC 30, at para. 13.
[^4]: See R. v. C.L.Y., at para. 6; R. v. Mends, 2007 ONCA 669, at para. 18. R. v. Carriere (2001), 159 C.C.C. (3d) 51, at para. 48 (Ont. C.A.).
[^5]: 2020 ONCA 718 at para. 4
[^6]: [2001] O.J. No. 2469 (Ont. C.A.) at paras. 7-8