COURT FILE NO.: 372/18
DATE: 20200204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Floriano Sylvester Daponte and Vivian Lee Hamilton
Defendants
Kimberley G. Johnson and Myfanwy Smith, for the Crown
Enzo Battigaglia, for the Defendant Floriano Sylvester Daponte and Etai Hilzenrat, for the Defendant Vivian Lee Hamilton
HEARD: December 12, 13, 17 and 19, 2019
garson, j.
REASONS FOR JUDGMENT
Introduction
[1] The defendants, Floriano Sylvester Daponte and Vivian Lee Hamilton, stand jointly charged with eight counts of trafficking in various drugs and controlled substances and one count of possession of proceeds of crime arising from the execution of a Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) search warrant (“the warrant”) at 2682 Coltsfoot Drive, Southwest Middlesex, Middlesex County, Ontario (“the property”) on August 13, 2017.
[2] The parties filed an Agreed Statement of Facts, supplemented with limited viva voce evidence from four police officers. The majority of the facts are undisputed.
[3] Mr. Daponte was the only person found on the property at the time of the execution of the warrant.
[4] These reasons explain the verdicts that I have reached in these matters.
The Property
[5] Lead investigative officer Det. Cst. Reintjes described the property as a sizeable 2.5-acre isolated rural hobby farm with livestock, located between Newbury and Glencoe, consisting of the following:
(1) a two-storey single residence with an attached garage;
(2) two large red barns;
(3) a medium-sized green and white drive shed (“the drive shed”); and
(4) a smaller shed and some dog kennels and dog structures.
[6] Neighbours are located a fair distance away, with the closest being approximately 340 metres to the south and the next closest some 600 metres away. Ms. Hamilton is the registered owner of the property. There is no fencing along the back of the property. Many large and loud dogs are kept on the property and are normally caged, unless the occupants are home in which case the dogs are often outside on the property. At the time of the execution of the warrant, police were aware that Ms. Hamilton was out of the country in Central America (Ecuador). She promptly returned when made aware of these charges and cooperated with police upon arrest.
[7] Victor Colpaert, a farm labourer, also lived in a shed on the property during weekdays (see S1 in Exhibit 2). The shed contained a bed and a table, but no running water, plumbing, or bathroom fixtures. He worked with animals and birds on the property and described himself to police as a “pothead”. His criminal record, which includes convictions for possession of controlled substances (i.e. fentanyl) for the purposes of trafficking and simple possession (marihuana, methamphetamine, and cocaine), is set out in Appendix A.
[8] Mr. Daponte and Ms. Hamilton operated a business from the property known as F and L Farms. The business sold dogs, goats, sheep, ducks, chickens, geese, ferrets, and other farm animals. F and L stood for Floyd and Lee.
Surveillance at the Property
[9] Det. Cst. Reintjes conducted surveillance at the property in both 2016 and 2017. In 2016, he attended at the property on seven separate occasions in the months of July, August, November, and December. In 2017, he conducted very limited surveillance on the day prior to, and the day of, the execution of the search warrant.
[10] The bulk of the observations with respect to Ms. Hamilton took place on November 4 and 18, 2016. They were limited to observing her doing chores around the barn and training dogs. She was not seen on the property during the limited surveillance in 2017, at which time she was known by police to be out of the country. Mr. Daponte, on the other hand, was regularly seen on the property, often tending to livestock or greeting visitors.
[11] Observations regarding Mr. Daponte in August 2017 were as follows:
(i) August 12, 2017: Det. Cst. Reintjes attended the property for primarily operational rather than surveillance purposes. The surveillance did not occur from an ideal vantage point. He observed two vehicles enter the property that day between 2:00 p.m. and 6:10 p.m. for short durations but did not see anyone exit either of the vehicles and could not observe the vehicles’ licence plates. He described both vehicles as full-sized pick-up trucks and observed no interactions between Mr. Daponte and the people in the vehicles. He did observe Mr. Daponte depart the property in a black Dodge Ram pick-up truck at 5:00 p.m. Mr. Colpaert was also seen on the property doing farm work; and
(ii) August 13, 2017: Det. Cst. Reintjes arrived at the property very early at 2:50 a.m. and set up observation at 6:10 a.m. He observed no vehicles enter the property until 8:38 a.m., when a silver quad-cab pick-up truck entered the property and a tall, thin blonde male exited the truck and headed to the west or kitchen door of the principal residence. Mr. Daponte was seen opening the door to let the male in. Mr. Daponte was wearing jeans but no shirt. A short minute later, both Mr. Daponte (now wearing a shirt) and the male exited the residence and headed towards the barn. Det. Cst. Reintjes lost sight of both males at this point but next saw them re-enter the residence at 8:42 a.m. The male exited the residence a minute later at 8:43 a.m. and left the property at a high rate of speed. Mr. Daponte is next seen retrieving a hat out of a truck, closing the interior door to the kitchen, and departing the property in a black Dodge Ram pick-up truck registered to Ms. Hamilton. He is seen shortly thereafter returning with two large hay bales and feeding the animals in the field. At 9:32 a.m., a white truck arrives at the residence and leaves three minutes later. No exchanges were observed between Mr. Daponte and any occupant of the white truck. Mr. Daponte is next observed going around the property and feeding livestock, including being observed at 9:49 a.m. at the green and white drive shed for less than a minute, until the OPP search warrant entry team arrived at 9:55 a.m.
[12] Det. Cst. Reintjes testified that he would have preferred to conduct further surveillance but that he was limited in choices of location to surveil and was directed by his supervisors to promptly obtain and execute a CDSA search warrant at the property.
The Search and Seizures
[13] Det. Cst. Sarvinder Virdee was the scene of the crime officer (“SOCO”) and was responsible for recording a series of entrance videos on the property to record the state of the property prior to search and for taking photographs of items seized during the search. A breaching tool was used by other officers to gain entry through the kitchen door of the main residence. Noteworthy in his entrance videos to the residence and other buildings on the property at 10:15 a.m., in his photographs, and in the officers’ personal observations during the search, are the following:
(A) In the Kitchen
(i) a pan on the stove with eggs;
(ii) broken egg shells on the counter;
(iii) two empty plastic white Player’s Navy Cut cigarette containers with blue lids on a lower shelf in a kitchen rack;
(iv) fifty small red zip-top baggies found in a kitchen drawer and a plastic bag containing three packages of unused clear zip-top baggies (80 pieces per bag); and
(v) a 2017 tax return in the names of both defendants in an envelope on the floor between the kitchen and the living room.
(B) In the Main Floor Bedroom
(i) medication for Ms. Hamilton on an end-table;
(ii) the television turned on as of approximately 10:18 a.m.;
(iii) an expired May 2015 passport in the name of Mr. Daponte in a dresser drawer; and
(iv) a man’s watch, clothing, and cologne.
(C) In the Living Room Area
(i) 180 clear zip-lock polybags, 1.5”x 2”, still in the original bags in two separate locations.
[14] Police also located two digital scales in the residence: the first, a 12” x 12” large scale in the pantry that was not checked to see if it was operational, and the second, a working digital scale disguised as a Tupac CD case located in the main bedroom. $1,860 in Canadian currency was also located in a dresser drawer. A search of the attached garage yielded a total of five bags of cannabis marihuana with a total weight of 615 grams.
(D) In the Green and White Drive Shed (B3)
[15] Det. Cst. Reintjes initially searched an area of the fields where he had previously (in July 2016) observed Mr. Colpaert digging. Nothing was found in this search. He then began searching the green and white drive shed with Det. Cst. Chris Golem. He described the shed as very dark with no electricity such that a flashlight was necessary for photos to be taken inside. Inside the shed (which was open), officers observed a lot of livestock running loose in very dirty and dusty surroundings with bird droppings everywhere. Inside was a red grain buggy and a heavy riding lawnmower covered with a tarp. Det. Cst. Reintjes lifted the tarp off of the lawnmower but was unable to locate a key to start the mower and was unable to move it by himself.
[16] Det. Cst. Golem, raised on a farm and familiar with excavation, began to notice soft areas on the dirt floor of the shed. He grabbed a pitchfork and began to poke at the ground where it was soft. Det. Cst. Golem dug a one-foot by one-foot trench but found nothing. He then observed a dirt mound underneath the lawnmower and found it strange that a tarp would cover such a worn piece of equipment. He plunged a pitch fork into the dirt mound. He felt it strike something and heard the sound of plastic cracking. He scraped some of the dirt away with his hands and found two white cigarette containers with blue lids, the first containing what appeared to him to be a controlled substance (but was later confirmed not to be) and the second containing a large quantity of Canadian currency and some opioid tablets. He described the two containers as the type normally used to hold loose tobacco.
[17] It took four officers (weighing almost a combined 1000 pounds) to move the lawnmower as no key was located. Further digging as far down as two-and-a-half to three feet yielded another ten white cigarette containers, eight filled with drugs and two filled with Canadian currency. In total, $82,020 in currency was seized from the twelve white cigarette containers, nine with blue lids and three with white lids. The following drugs and controlled substances were found:
• 70 x 75 microgram Fentanyl patches
• 27 x 100 microgram Fentanyl patches
• 10 x 50 mcg/hr Fentanyl patches
• 1022.7 grams of cocaine in compressed form
• 3 x 8 mg tablets of Naloxone
• 5,388 tablets of Hydromorphone (30 mg x 683 / 24 mg x 12 / 20 mg x 1 / 12 mg x 88 / 8 mg x 3997 / 6 mg x 44 / 4 mg x 510 / 3 mg x 40)
• 3,467 tablets of Morphine (200 mg x 2006 / 100 mg x 93 / 60 mg x 792 / 30 mg x 363 / 15 mg x 213)
• 7,959 tablets of Oxycodone (100 mg x 68 / 80 mg x 1687.4 / 60 mg x 258 / 50 mg x 1 / 40 mg x 3608 / 30 mg x 98 / 20 mg x 2017.5 / 10 mg x 57 / 6 mg x 1)
• 164 Fentanyl Tablets (originally believed to be 30 mg Oxycodone tablets – analyzed as Fentanyl)
• 24 tablets of Ritalin of various doses
• 1 tablet of Rohypnol
• 123.5 tablets of Dilaudid (8 mg x 67.5 / 4 mg x 55)
• 14 tablets of Buprenorphine
• 1447 tablets of Viagra
[18] There is no dispute that the average value of the illicit drugs seized is $815,851.25.
[19] Det. Cst. Golem testified that he received property from another officer who arrested and searched Mr. Daponte incident to arrest. Det. Cst. Golem was given a key, a watch, and $160 in Canadian currency. Det. Cst. Mark Thompson testified that he received a ring of keys from Det. Cst. Golem and found a key on that ring that opened the door on the west side of the attached garage. Also found on the ring of keys was a key to operate the deadbolt and doorknob for the west door of the residence.
The Law
(i) Presumption of Innocence and Burden of Proof
[20] The defendants are presumed innocent of the charges unless and until the Crown establishes their guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.
[21] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It requires that I be sure that the defendants committed the offences. The standard of proof applies to each of the essential elements of the offences, not to every piece of circumstantial evidence, and requires that I determine if the evidence as a whole establishes proof beyond a reasonable doubt.
(ii) Possession
[22] Section 2 of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code.
[23] The Crown relies on s. 4(3)(a)(ii) of the Criminal Code, which provides that a person has possession of anything when they knowingly have it in a place for the use or benefit of themselves or another person, and s. 4(3)(b), which allows for one of two or more persons to have custody or possession, and if possession is with the knowledge and consent of the rest, all are deemed to be in possession.
[24] Constructive possession requires proof of knowledge and some measure of control over the thing, while joint possession requires knowledge, consent, and some measure of control: see R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940, and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.
[25] Constructive possession does not require actual physical possession and can be established if the drugs are in another place and the defendants know the nature of the drugs, knowingly keep them in this place, and do so for their own benefit or use.
[26] The element of knowledge may be established by circumstantial evidence, which can be sufficient to infer the requisite knowledge: see Pham at para. 17.
[27] The onus is on the Crown to prove all of the essential elements of the offence beyond a reasonable doubt.
(iii) Traffic
[28] An inference of an intention to traffic may arise where the Crown can show that the defendants were in possession of a sufficiently large quantity of drugs: see R. v. Oakes (1983), 1983 CanLII 1850 (ON CA), 145 D.L.R. (3d) 123 (C.A.), aff’d 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.
[29] Similarly, items such as weigh scales, packaging materials, the dividing or packaging of drugs into smaller units, and large amounts of cash, particularly if the cash is bundled in lower denominations and stored in close proximity to the drugs, are all evidence properly considered as relevant to the intention of the defendants to traffic in a particular drug.
(iv) Circumstantial Case
[30] This is an entirely circumstantial case and, as such, guilt must be the only reasonable conclusion from the available evidence I accept: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.
The Defence
[31] The defendants rightly point out that this is a circumstantial case and, as such, that their guilt must be the only reasonable inference available on the evidence I accept. They point the finger at Mr. Colpaert, who has an extensive and related criminal record for drug offences, as the sole culprit who placed the drugs and cash on the property and disappeared once they were discovered. They argue that there is a lack of any direct evidence linking either defendant to the drugs.
The Crown
[32] The Crown counters that, when seen in its entirety, the circumstantial case against the defendants is sufficient to establish their guilt beyond a reasonable doubt. Given the significant quantity and value of controlled substances seized, the Crown urges me to draw the reasonable inference that the defendants would have knowledge of such drugs.
Preliminary Issues
(i) Concessions
[33] The defendants concede the nature of the drugs seized. They also concede the fact, with respect to the first five counts (trafficking in cocaine, morphine, oxycodone, hydromorphone, and fentanyl), that if I find that the defendants possessed these drugs, the quantity discovered, coupled with the expert evidence report of Detective Chris Miller (see exhibit 24), is sufficient proof of possession for the purposes of trafficking. Accordingly, the primary issue for consideration with respect to counts 1-5 is whether the defendants possessed the drugs.
[34] Similarly, the Crown concedes, with respect to counts 6-8 (trafficking in buprenorphine, methylphenidate, and marihuana), that they are only asking for findings of guilt on the lesser and included offences of possession simpliciter. Again, the primary focus on these counts is whether the defendants possessed the drugs.
(ii) Sufficiency of Count 8 – CDSA Schedule II
[35] The defendants filed a copy of CDSA Schedule II, current as of December 3, 2019, and point to the fact that marihuana is no longer listed in Schedule II. They thus argue that count 8 must fail.
[36] I disagree. The date of the alleged offence was August 13, 2017. At that time, cannabis (marihuana) was listed in Schedule II of the CDSA.
(iii) Police Missteps
[37] The defendants strenuously argue that there were a series of police missteps that are fatal to the case. More specifically, they point to:
(i) the omission in the CDSA search warrant ITO of Mr. Colpaert’s 2013 conviction for possession for the purposes of trafficking;
(ii) the poor quality of many of the photos and the scene videos and the failure of the SOCO officer to adjust the video camera and camera time to Daylight Savings Time; and
(iii) evidence as to the minimal surveillance conducted on the property and the lack of police follow-up in either stopping vehicles that were seen on the property for short visits or seizing and testing items found in Mr. Colpaert’s shed.
[38] Although these are all matters for consideration, in my view none of them, either individually or collectively, rise to a level of concern for the integrity of the investigation. There is little doubt that this was not the perfect investigation – far from it. However, explanations offered for the inadvertent omission in the search warrant, the leftover drug unit equipment available to the SOCO officer, the limited resources, and the earlier 2016 surveillance of the property sufficiently explain the gaps and defects in the investigation. Put another way, although this was not the most thorough or detailed investigation, steps and/or missteps by the police are neither determinative nor dispositive of the issues before me. I now turn to examine the evidence.
Discussion
[39] The starting point for my analysis is a restatement of the fact that this is a wholly circumstantial case. There is no direct evidence of any drugs in the hands or personal possession of either of the defendants or of any confirmed observations of drug transactions between either defendant and a third party. At best, the visits of short duration and the one short interaction between a visitor and Mr. Daponte are factors I may consider but, standing alone, they are of little assistance. They certainly fall short, in isolation, of proof of drug transactions. There are no fingerprints or DNA linking the defendants to the seized containers, drugs, or currency. Accordingly, I can only reach a guilty verdict if the Crown proves the case beyond a reasonable doubt and guilt is the only reasonable conclusion I can reach on the evidence. I next turn to assess the defendants’ connection to the property and knowledge and control of the drugs and currency found.
Connecting the Defendants to the Property
[40] I have little difficulty drawing a connection between both defendants and the property. Their association is clear and undeniable.
[41] Ms. Hamilton has been the registered owner of the property since May 13, 2013. Her driver’s licence reflects this address. Documents such as the Intact Insurance policy and a tax return in her name were found at the property. A business card and business ledger for F and L Farms was found, suggesting an attempt to run a business from the property. The business card referred to the names Floyd and Lee and contained the property’s address. Ms. Hamilton is clearly the Lee referred to on the business card. Although not seen by police on the property in 2017, she was observed by police on repeated occasions in 2016. Her connection is irrefutable.
[42] Mr. Daponte was consistently present at the property during police surveillance in both 2016 and 2017. He is the only person found at the property at the time of the execution of the search warrant. On August 13, 2017, the television is on in the bedroom, eggshells are on the counter, and a frying pan with eggs is on the stove. I am mindful that the entire home and garage were in a significant state of disarray and that none of the officers confirmed whether the stove or pan was warm. Nonetheless, these concerns must be assessed in the framework of other available and reliable evidence. He is observed entering and exiting the residence and obtaining a shirt from inside the residence. Men’s clothing, cologne, and a watch are all seen on the dresser in the main bedroom, as well as his expired passport. His connection is clear.
[43] The defence argues that there is no evidence to connect any keys found to the property to Mr. Daponte and that, in any event, there is no evidence to support the police suggestion that the deadbolt to the residence was secured and had to be breached.
[44] The defence also relies heavily on the fact that Mr. Daponte was on a court-ordered recognizance, entered into on December 5, 2016, to reside at 24694 Melbourne Road in Strathroy, and therefore that he could not have been residing at the property or he would have been in breach of his court order. The recognizance was in effect at this time and had been varied to permit Mr. Daponte to go to work at the farm property.
[45] In my view, neither of these submissions severs Mr. Daponte’s connection to the property. Whether he possessed a key at the time of arrest and whether the deadbolt was secure or not do not detract from the fact that Mr. Daponte spent extensive time at the property and clearly had access to the property. Similarly, his obvious presence at the property at 2:50 a.m. on the day the warrant was executed demonstrates that the recognizance is but one factor in this determination. The reside clause in the recognizance establishes nothing more than what he was lawfully expected to do, not what he actually did. Other documents filed referred to a connection to a further address at 25684 Napier Road. These reflect nothing more than self-reported addresses.
[46] The connection between Mr. Daponte and the property is consistent and undeniable. At times, he worked there, ate there, slept there, and greeted visitors there. He was there as early as 2:50 a.m. on the day of search warrant execution.
[47] However, a clear connection between both defendants and the property falls far short of what is necessary to tie or connect either of them to the significant quantity of drugs and currency seized in the drive shed and the garage. Put another way, occupancy of the residence, standing alone, does not establish possession of the drugs found: see R. v. Biggs, 2016 ONCA 910, and R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.).
[48] Accordingly, I next turn to the evidence dealing with the defendants’ knowledge or control of the drugs and currency seized.
Knowledge of the Drugs and Currency Found
[49] Knowledge may be established by circumstantial evidence. I take into account the following items seized and observations made:
(i) two digital scales were located in the residence, although neither contained any drug residue and only one was tested and confirmed to be functional;
(ii) two white cigarette containers with blue lids closely resembling nine of those found buried in the ground in the drive shed were found on a shelf on a kitchen rack;
(iii) small red zip-top baggies, which appear to be virtually the same as the baggies found in Container #11, were located in one of the kitchen drawers; and
(iv) dates on two $10 bills and a pill bottle seized from the buried containers established that at least some of the items buried in the white cigarette containers in the ground in the drive shed were placed there at some point in 2017 (and in the case of the pill bottle, on or after June 28, 2017).
[50] I pause at this juncture to deal with Victor Colpaert, the alternate or third party suspect originally charged but who later had his charges withdrawn. I earlier ruled that sufficient evidence existed connecting Mr. Colpaert to the offences charged to permit the defence to introduce such evidence.
[51] The defendants urge me to find that these were Mr. Colpaert’s drugs and that he acted unilaterally without their knowledge or consent. They point to his related and recent criminal record and, more specifically, his 2017 conviction for possession of cannabis (in total, he has five convictions for simple possession of drugs) and an earlier 2013 conviction for trafficking in fentanyl; his residing in a shack on the property during weekdays; and his apparent unfettered access to the sheds, barns, and livestock on the property that he must have routinely accessed to perform his duties as a farm labourer. They further point to the lack of running water in his shack and the reasonable inference I should draw that he would routinely access the primary residence at the property for both kitchen and washroom facilities.
[52] They suggest that, by not being on the property at the time of the execution of the warrant, not turning himself in, and being arrested in a nearby town weeks later on September 11, 2017, Mr. Colpaert demonstrated a clear consciousness of guilt and post-offence conduct consistent with him being the sole possessor and owner of the seized substances and currency.
[53] They rely on a picture from July 2016 police surveillance that appears to show Mr. Colpaert digging near the northeast corner of the property. This was the first search location of Det. Cst. Reintjes when he began searching the property. Det. Cst. Reintjes acknowledged in cross-examination that police found some evidence of drug use in Victor’s shed but did not seize this evidence.
[54] Mr. Colpaert’s guilt or innocence is not before me. I need not decide it.
[55] Does this evidence, in and of itself, sufficiently deflect from the evidence against the defendants? No, it does not.
[56] Evidence connecting Mr. Colpaert to these offences is also circumstantial.
[57] Mr. Colpaert was a farm labourer. He was not an owner, not an occupant of the main residence, and not a named member of the farm business (F and L Farms) run out of the property. Common sense, logic, reason, and human experience all suggest that more than $800,000 of controlled substances and drugs and more than $80,000 of currency are not solely those of a “pothead” who lived during the weekdays in a shed without running water. A sign outside of his clearly lived-in shack read “Victor’s shack – keep out”. A fridge was found in the shack. Although not ideal, the sparse furniture and appliance, coupled with the signage, made clear that Victor craved his privacy in his little abode. A further sign in his shack that read “please clean up your mess” suggests that Mr. Colpaert struggled to control and maintain his shed. No documents, business cards, or other connecting items belonging to Mr. Colpaert were found in the main residence. Surveillance did not observe him to either enter or exit the main residence.
[58] I disagree that it is reasonable to infer that he regularly accessed the main residence on the property. None of his possessions appear to have been found there and he is never seen there. This would be nothing more than mere speculation.
[59] Looked at in its totality, Mr. Colpaert’s presence and part-time residence at the property, his criminal background, and his post-offence behaviour fall short of sufficiently deflecting attention from the defendants or from satisfying me that he was solely in possession of the seized drugs and currency.
[60] I return to the available evidence that may permit reasonable inferences of knowledge of the drugs and currency on the part of the defendants. I am mindful that such inferences must be reasonably and logically drawn from established facts in evidence and not simply from mere speculation. I start with Mr. Daponte and note the following:
(i) He was the only person found on the property at the time of the execution of the search warrant and, based on the presence of items on the kitchen counter and stove and the television being on in the main bedroom, it is reasonable to infer that he was an occupant of the residence and residing there at least some of the time and, more specifically, on August 13, 2017;
(ii) There is no direct evidence that Mr. Daponte possessed a key that opened the garage door or the kitchen door of the residence. However, returning to surveillance of his entering and exiting the residence and closing the door, and having already determined that he was residing there on August 13, 2017, it is reasonable to infer that he had access to a key to enter the residence (if, in fact, such a key was necessary to gain entry) and, more specifically, the west or kitchen door to the residence and access with a key to the garage; and
(iii) Based on his being seen at various locations on the property, his involvement in F and L Farms, and his duties around the property caring for livestock, it is also reasonable to infer that he had regular access to the other structures on the property, including the drive shed. He is clearly the Floyd referred to in the F and L business card. There is no evidence that the drive shed was locked or had a locking mechanism.
[61] I come back to the red zip-top baggies. The defendants suggest I place little to no weight on the fact that they are virtually identical to those displayed in container 11 and photos 38, 50, and 51 in the photo-brief filed as Exhibit 4. They suggest that the clear and stated purpose of these baggies is as a crafts supply for use with crafting. They also argue that at least six types of baggies were found in the buried containers and that only one type of baggie was connected to a baggie found in the kitchen residence.
[62] I disagree. I find this to be a cogent and relevant piece of circumstantial evidence of knowledge.
[63] Is there other confirmatory evidence? Such evidence includes weigh scales, other packaging materials, a few visits to the property of short durations, two white cigarette containers found on a shelf in the kitchen that match the containers buried in the ground, dates in 2017 on some of the currency and pill bottles found buried in the ground, and the similarity between a pill bottle found on the nightstand in the main bedroom and one found in one of the buried containers. Standing alone, each of these items falls woefully short of establishing knowledge and control. However, when viewed in totality, they paint a much clearer and more compelling picture.
[64] I pause at this juncture to take into account the significant quantity of drugs seized, which permits me to reasonably infer that such a significant amount of drugs and cash would not be entrusted to any person who was not aware of the nature of the contents of the containers: see R. v. Sandhu, 2017 ONCA 709, at para. 4, citing R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 157.
[65] The same or similar unique white cigarette containers and, in one case, the same style and type of baggies or packaging material to those containing the buried drugs and currency were found in the main residence of the property. These Player’s white cigarette containers are an important piece of evidence that provides a compelling and powerful link between the occupants of the residence and the drugs and currency buried in the drive shed.
[66] At least some of the drugs and currency were not buried until 2017. The riding mower required a key or at least four big and strong people to move it and, as such, it is reasonable to infer that someone who had knowledge and control of the drugs and currency regularly attended at, and had controlled access to, the property, the drive shed, the mower, and the key necessary to move or operate the mower. In any event, I note that Det. Cst. Reintjes testified that someone could access the buried drugs and currency between the wheels of the mower without moving it.
[67] The defence suggests that there is no evidence of a lock on the drive shed door and that, if the defendants had knowledge and control over the drugs and currency, they would have put a lock on the door. I disagree. By all accounts, police acknowledged that this was a very crafty hiding spot, with the last four white cigarette containers buried between two-and-a-half to three feet underground. The containers were extremely well concealed and there would be little reason for concern regarding detection given the cover provided by the mower and the tarp. Simply put, whoever possessed these drugs took significant, deliberate, and careful steps to hide the drugs and currency.
[68] I next turn to Ms. Hamilton. I need not repeat my earlier analysis. All of the confirmatory evidence referred to in para. 63 equally applies and connects her to the substances and currency seized. The mere fact that she was not seen on the property on two days in August and was the beneficiary of good fortune not to be on the property when the warrant was executed does not make the circumstantial case against her any weaker. Police were made aware by her of her intended absence a few days prior to the execution of the warrant.
[69] The totality of the circumstantial evidence against the defendants is compelling and convincing. They reside there, run a business out of there, and are connected to the drugs and currency seized by the physical evidence seized in the main residence.
[70] All clear indications are that they are living at the main residence. The television is on and food is on the stove and the counter. Mr. Daponte’s clothes, his business documents, and his expired passport were all found and seized at the main residence. Is that enough?
[71] Is guilt the only reasonable inference that can be drawn from the circumstantial evidence? I pause to examine the alternative theories.
[72] Is it reasonably plausible that a stranger stored these drugs and currency in the drive shed? Given the barking dogs on the property, the remoteness of the property, the difficulty of moving the mower without a key, and the fact that a drug trafficker and his drugs are rarely entrusted to a stranger, this theory is simply not plausible. It defies human logic that a stranger without a key to the mower would dig a three-foot hole under the mower and bury this quantity of drugs and currency. It is fanciful – mere speculation.
[73] Is it reasonably possible Victor Colpaert was in sole possession of the drugs and currency? The defendants ask that I reasonably infer that Mr. Colpaert was using the main residence for his water and for his kitchen. As discussed earlier, this is mere speculation. Mr. Colpaert is not seen in the residence during surveillance and the sign on his shack indicated others should “stay outa my shit”. Logic and experience tell me that it is illogical to somehow connect Mr. Colpaert alone to the white cigarette containers, packaging materials, and cash found in the main residence, or to the marihuana found in the garage.
[74] Put another way, the Crown has disproven the inferences that the drugs and currency were solely those of Mr. Colpaert or solely those of a stranger.
[75] The onus rests squarely on the Crown to prove possession of the drugs and currency beyond a reasonable doubt.
[76] Although the failure of the defendants to testify does not justify an inference of guilt, it does create an absence of an innocent explanation of inculpatory facts. As noted by the Supreme Court of Canada in R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 86, when a circumstantial case has “enveloped a man in a strong and cogent network of facts” and he is “bound to make an explanation or stand condemned,” the case has reached a point of proof beyond a reasonable doubt.
[77] On the circumstantial evidence before me, viewed in its totality, I can reach no other reasonable conclusion than that the defendants had knowledge of and control over the drugs and currency found in the search. There are simply too many connecting factors to ignore. More specifically, the two white Player’s cigarette containers found in the kitchen of the main residence are similar to the containers buried in the drive shed containing the drugs and currency. These containers are the adhesive that bonds together the rest of the circumstantial evidence and paints a clear and unmistakeable picture of possession by the defendants. Although not in direct or actual possession, I am satisfied that they either jointly or constructively possessed the drugs and currency.
[78] I am also satisfied that the quantities of drugs involved, coupled with the concessions made by the defendants at the outset of trial with respect to the drugs listed in counts 1-5, namely, cocaine, morphine, oxycodone, hydromorphone, and fentanyl, provide sufficient proof that they had the necessary intent to traffic in those drugs.
[79] Having regard to the $82,020 in currency seized from the twelve buried white cigarette containers, I have little difficulty concluding that, based on the quantum of monies coupled with the location of the monies, they were clearly obtained by or derived directly or indirectly from the sale of controlled substances.
[80] Accordingly, for the above reasons, I reach the following conclusions:
(i) I find the defendants guilty as charged on counts 1-5 and not guilty of counts 6-8 as charged but guilty of the lesser and included offences of simple possession.
(ii) Having found the defendants in possession of the currency and being satisfied of the connection between the currency and the drugs, I also find the defendants guilty of count 9 of possessing proceeds of crime.
“Justice M.A. Garson”
Justice M.A. Garson
Released: February 4, 2020
COURT FILE NO.: 372/18
DATE: 20200204
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Floriano Sylvester Daponte and Vivian Lee Hamilton
REASONS FOR JUDGMENT
Justice M.A. Garson
Released: February 4, 2020