COURT FILE NO.: 17-G1001
DATE: December 21, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAMARA BAHLAWAN
Brigid Luke for the Crown
Mark Ertel for the Defendant
HEARD: February 11, 13, 17 and 21; March 9; August 27 and 28; October 5, 9 and 19; and November 20, 2020
VERDICT
S. GOMERY J.
[1] Tamara Bahlawan is charged with four counts of possession of drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and five offences in relation to the illegal possession and storage of a firearm and ammunition contrary to ss. 86(3), 88(2), 91(3), 92(3) and 95(2) of the Criminal Code.
[2] The charges stem from surveillance in October and November 2016 by the Ottawa Police Service (“OPS”) of Ms. Bahlawan and her boyfriend at the time, Ahmed Al Enzi. Based on this surveillance, the police believed that Mr. Al Enzi and Ms. Bahlawan were selling drugs from her car and from apartment 311 at 1470 Heron Road in Ottawa (the “Heron Road apartment”).
[3] On November 22, 2016, the police executed search warrants for the Heron Road apartment; the house where Mr. Al Enzi lived with his parents and his brothers on Lilibet Crescent (the “Al Enzi home”) and the house on Shandon Avenue where Ms. Bahlawan lived with her brother and parents (the “Bahlawan home’). The police found drugs, including crack cocaine, narcotics in pill form, cellphones and two digital scales at the Heron Road apartment. Fentanyl patches, a knife and a wad of cash were found on Mr. Al Enzi’s person. The search of the Al-Enzi home yielded further narcotics, three more cell phones, and another digital scale. The police did not find any illicit drugs, drug-related paraphernalia or any other evidence of drug dealing in the Bahlawan home. They did however find a .32 Colt revolver and ammunition in a clothing bin in a basement bedroom.
[4] Ms. Bahlawan and Mr. Al Enzi were at the Heron Road apartment when the warrants were executed. The officers at the apartment charged them initially only with possession of drugs for the purpose of trafficking. When they learned that a gun had been found at the Bahlawan home, they were both charged with firearms offences as well, even though Mr. Al Enzi told the arresting officer that the gun was his and that he had left it at Ms. Bahlawan’s house without her knowledge.
[5] In 2019, Mr. Al Enzi pled guilty to the drug charges. The firearms charges against him were abandoned by the Crown as part of a plea deal. In his statutory declaration dated May 3, 2019, Mr. Al Enzi admitted that he was in possession of the drugs found at the Heron Road apartment and the Al Enzi home for the purpose of trafficking them. He disavowed, however, any knowledge of the gun found at the Bahlawan home. He said that he had lied about the gun on November 22, 2016 so that the police would not charge Ms. Bahlawan, his girlfriend at the time, with firearms offences.
[6] During this trial, the Crown called officers involved in the investigation up until November 22, 2016 and officers involved in the searches that day. The Crown also called an expert, Sergeant Jeffrey Pilon, who testified about drug trafficking in Ottawa and about what could be inferred based on the evidence collected during the investigation. The defence called a single witness, Mr. Al Enzi. The accuracy of various records tendered by the Crown was not challenged. These records included analyses of the drugs seized, an affidavit of continuity, fingerprint identification, exhibit lists, and a certificate stating that the gun seized at the Bahlawan home was a prohibited weapon under s. 84 of the Criminal Code.
[7] In assessing whether the Crown has proved its case against Ms. Bahlawan, I will first review the evidence with respect to her activities prior to November 22, 2016, and then the evidence obtained during the searches on that day, Sgt. Pilon’s evidence and Mr. Al Enzi’s evidence. I will then determine whether the Crown has proved either the firearm offences or the drug offences.
The police investigation and surveillance prior to the searches
[8] The investigation that resulted in the charges was initiated by Detective Danick Payment in September 2016. Detective Matthew Cox became involved in it a short time later. Det. Payment joined the OPS in 2002 and Det. Cox in 2006. In the Fall of 2016, they were both experienced members of the street crime unit. The unit’s focus is undercover work, during which officers conduct drug transactions to apprehend individuals involved in trafficking. Det. Payment and Det. Cox have each been involved in thousands of drug investigations.
[9] Four other officers from the street crime unit later joined the investigation: Sergeant Ray Smith; Detective Chris Getz; Detective Jason Lehman; and Detective Thanh Tran. At the time, with the exception of Det. Tran, these officers had also done many drug investigations, spent time undercover buying drugs, and conducted hundreds or thousands of hours of surveillance of drug sales. Each officer spoke knowledgeably about the quantities of drugs typically involved in street sales, and the way in which crack cocaine, in particular, is sold.
[10] Each member of the team testified about what he observed during the surveillance of Mr. Al Enzi and Ms. Bahlawan. Their evidence was clear, detailed and matter of fact. They relied on contemporaneous notes. The officers did not exaggerate or draw unreasonable inferences. They made appropriate concessions in cross-examination. Their testimony about the surveillance was largely unchallenged, although they were cross-examined on some inferences they drew based on their observations. Unless otherwise noted, I find their evidence reliable.
[11] In July 2016, Det. Payment received information from a confidential informant that Mr. Al Enzi was selling Fentanyl and crack cocaine. The informant told Det. Payment that Mr. Al Enzi had a girlfriend named Tamara Bahlawan and that her car was being used for drug sales. The informant also mentioned an address on Heron Road and the possibility that Mr. Al Enzi had a firearm.
[12] Det. Payment did some preliminary searches on Mr. Al Enzi but did not act on the information during the summer, due to a lack of resources.
[13] On September 26, 2016, purely by coincidence, Det. Payment observed Mr. Al Enzi and a woman at a movie theatre. Mr. Al Enzi got a call and went out the back door of theatre, where he met a man. The man and Mr. Al Enzi engaged in a hand to hand transaction: the man gave something to Mr. Al Enzi, who in turn removed a dark wrapper from his front pocket and gave something to him. In Det. Payment’s view, this was a drug sale.
[14] Det. Payment documented what he saw, obtained video footage from the theatre and did a CPIC search on Mr. Al Enzi. The video footage confirmed that the woman with Mr. Al Enzi was Ms. Bahlawan. The CPIC search revealed that Mr. Al Enzi was under house arrest while awaiting trial on serious charges, and that he was breaching the terms of a conditional release by attending the movie theatre without a surety.
[15] At around this same time, Det. Cox received a tip from another confidential informant, consistent with the tip received from Det. Payment. Both officers testified that Mr. Al Enzi and his family were known by the OPS to be associated with criminal activity including gangs and drug sub-culture.
[16] Based on their experience with drug investigations, the officers did not think that Mr. Al Enzi would be caught selling drugs to anyone he did not know. As a result, Det. Payment decided to pursue the investigation by putting together a surveillance team instead of conducting an undercover operation. The goal was to corroborate information obtained from the confidential informants and to get sufficient information to obtain a search warrant.
[17] The surveillance began on October 13, and continued October 24 and 26, and November 3, 8, 9, 10, 21 and 22, 2016.
[18] The surveillance initially targeted only Mr. Al Enzi. Both Det. Payment and Det. Cox acknowledged that they had no knowledge of any prior criminal activity by Ms. Bahlawan or her family members. She also had no role in the suspected drug transaction observed at the movie theatre in September 2016.
[19] In the early evening of October 13, 2016, a woman, later identified to be Tamara Bahlawan, was seen getting into a red Honda Accord parked in the driveway of the Bahlawan home. The car, which I will refer to as “the red Honda”, was registered to her father at the Shandon address.
[20] Ms. Bahlawan drove to Lillibet Crescent and picked up Mr. Al Enzi outside his house. She drove them to a convenience store, then they briefly stopped at two fast-food restaurants. Mr. Al Enzi was seen talking on a cell phone. They then drove to a nearby gas station, with Mr. Al Enzi by now in the driver’s seat. While Ms. Bahlawan was inside the gas station kiosk, a woman approached the driver’s side window of the red Honda and conducted a hand to hand transaction with Mr. Al Enzi.
[21] After leaving the gas station, Ms. Bahlawan and Mr. Al Enzi drove to an apartment building at 1470 Heron Road, parked and went inside. They had not been observed again when surveillance was discontinued forty-five minutes later.
[22] On October 24, Ms. Bahlawan again pulled up at the Al Enzi home in the red Honda in the early evening and moved to the front passenger seat. Mr. Al Enzi came out of his house a few minutes later and got in the driver’s seat. He and Ms. Bahlawan drove a very short distance and parked on a nearby street. Another older Honda pulled up and parked behind the red Honda. A man got out of the car, approached the driver’s window and had a brief conversation with Mr. Al Enzi. The man reached into his pants pocket, retrieved some money, and leaned into the car window to place it inside the red Honda. Mr. Al Enzi was seen moving around in the driver’s seat and handing something to the man, who then returned to his car.
[23] Mr. Al Enzi then drove the red Honda a little farther down the street and parked again. A white Lexus pulled up and parked behind the car. The driver got out and got into the back seat of the red Honda. Mr. Al Enzi was again seen moving around inside the car. A minute later, the man got out of the backseat, returned to the Lexus and drove away.
[24] After the man in the Lexus left the car, Mr. Al Enzi and Ms. Bahlawan drove to a local mall, parked and went inside. According to Det. Cox, they appeared comfortable and happy with each other. They exited the mall about an hour later and drove the red Honda to 1470 Heron Road, parked, and entered the apartment building. Mr. Al Enzi and Ms. Bahlawan had again not been seen again when surveillance was discontinued about half an hour later.
[25] Surveillance continued two days later on October 26. By this time, the team’s objective was to gather information about both Mr. Al Enzi and Ms. Bahlawan. Det. Getz and Det. Cox testified that she had been added as a target based on observations during the two first days of surveillance. The Heron Road apartment was also added as a relevant location. The surveillance team had learned that apt. 311 was rented to Nathan McCorkle, an individual known to the OPS. Mr. McCorkle suffered from a brain injury and his home had been used for the purpose of drug trafficking in the past.
[26] Mr. Al Enzi and Ms. Bahlawan’s activities on October 26 were similar to those seen on October 24. She picked him up at his house in the early evening. He took the wheel of the red Honda and drove the car to the same nearby street where he had parked two days earlier. Two vehicles were already parked on the street: a Toyota and an SUV. An occupant of each of these vehicles got into the backseat of the red Honda for two minutes at a time. The driver of the Toyota walked back to his vehicle with his hands clenched. Some members of the surveillance team followed the Toyota after it drove off. The driver parked again a short distance away, and Det. Payment observed the car’s occupants smoking crack pipes.
[27] After these interactions, Mr. Al Enzi and Ms. Bahlawan once again drove to the Heron Road apartment building, and surveillance was discontinued for the day.
[28] Surveillance resumed a week later, on November 3. On this day, Ms. Bahlawan stayed in the driver’s seat of the red Honda after picking Mr. Al Enzi up in the early evening at his house. They drove to 1470 Heron Road and parked in front of the apartment building. Two men who were waiting outside the building got into the backseat of the red Honda for three minutes, then got out and entered the apartment building. Mr. Al Enzi then drove with Ms. Bahlawan to a parking lot in front of a bank. A man got out of a Hyundai already parked there and got into the backseat of the red Honda for three minutes. After he left, Mr. Al Enzi and Ms. Bahlawan visited a store, ate at a restaurant, and drove to a movie theatre. Mr. Al Enzi came back out of the theatre almost immediately after they went inside. He met with a man on the front steps, which whom he conducted a hand to hand transaction. Surveillance was terminated for the day after Mr. Al Enzi went back inside the theatre.
[29] On November 8, 2016, Ms. Bahlawan and Mr. Al Enzi visited a pet supply store and a Dairy Queen after she picked him up in the early evening. Mr. Al Enzi then parked at a mall parking lot. They remained there for about twenty minutes, until two men approached the red Honda on foot. They placed a black knapsack in the trunk and got into the backseat of the car. A minute later, the driver of a Chevy parked two spots beside the red Honda and approached the driver’s window. He was seen to conduct a hand to hand transaction with Mr. Al Enzi. As he walked back to the Chevy, he put something into his vest jacket.
[30] After this interaction, Mr. Al Enzi drove the red Honda to 1470 Heron Road, where all four passengers disembarked. Det. Payment then recognized one of the men as Serge Parent, whom he has arrested in the past for drug related offences, including possession of crack cocaine. Mr. Parent retrieved the black knapsack from the trunk of the red Honda, and everyone went up to apt. 311.
[31] Over the next four hours, Mr. Parent was seen exiting the building with the backpack, going into the building next door and returning a short time later without it. He later left on a bicycle. A man and a woman were seen visiting the Heron Road apartment for about four minutes. Immediately after leaving the building, they were both seen lighting up crack pipes. At 22h11, Mr. Al Enzi came out of the building and got into the backseat of a Grand Am that had just pulled up. When he left the car two minutes later, he was seen putting something in his pants pocket with his right hand and reaching inside his pants with his left hand and moving it around.
[32] Ms. Bahlawan and Mr. Al Enzi both left the Heron Road apartment just before 23h00. She dropped him off at his house before driving home.
[33] The surveillance continued the next day, November 9. No suspected drug transactions were observed. After visiting a drive-through restaurant, Ms. Bahlawan and Mr. Al Enzi drove to the Heron Road apartment. Ms. Bahlawan left about two hours later without him, at which time the surveillance ended for the day.
[34] On November 10, 2016, Det. Payment had intended to execute search warrants he had obtained for the Al Enzi home, the Bahlawan home and the Heron Road apartment. Mr. Al Enzi and Ms. Bahlawan did not, however, go to the apartment as expected. They were instead seen renting a car and driving towards Montreal. Since the OPS wanted to arrest Mr. Al Enzi and Ms. Bahlawan before conducting the searches, the warrants were not executed that day.
[35] Surveillance resumed on November 21. The activities observed this day resembled those seen on most other days. After Ms. Bahlawan picked Mr. Al Enzi up at his house in the early evening, she drove the car to a community centre and parked next to a gold vehicle that was waiting there with its lights on. The driver of this vehicle walked over and got into the backseat of the red Honda, where he remained for two minutes. Ms. Bahlawan then drove Mr. Al Enzi to 1470 Heron Road and they went inside apt. 311. The surveillance team saw various people coming and going from the apartment while they were there. Each of these visits lasted only a few minutes. Surveillance ended at 19h25 without Mr. Al Enzi or Ms. Bahlawan being seen again.
[36] Based on what they observed during the surveillance in October and November, Det. Payment and the other officers on the team formed the view that Mr. Al Enzi and Ms. Bahlawan were selling drugs from the red Honda and the Heron Road apartment. They testified that, based on their experience in drug investigations, the hand to hand transactions that they saw Mr. Al Enzi conducting from the driver’s seat of the red Honda and at other locations were exchanges of drugs for money. They believed that individuals who got into the backseat of the red Honda were also buying drugs.
[37] The officers testified about how the interactions they observed had the indicia of drug transactions. The red Honda was driven to a spot where other vehicles were waiting or pulled up shortly after its arrival. These pre-arranged meetings took place on streets or in parking lots. Officers observed quick, furtive hand to hand transactions between Mr. Al Enzi and the suspected buyers. When individuals got into the backseat of the red Honda, they did so without speaking to Mr. Al Enzi or Ms. Bahlawan first. They stayed inside the car for only two or three minutes. Individuals were seen clenching something in their hands or putting something in their pocket after they left the red Honda. On October 26, an individual who spent time in the backseat of the car was observed lighting up a crack pipe minutes later.
[38] Det. Getz testified that, based on his observations, it was clear that Mr. Al Enzi was trafficking drugs. He stated that it is very difficult to see street level drug purchases during mobile surveillance. At most, you would see a hand to hand exchange of something very small. Det. Getz noted that $20 of crack cocaine would weigh in the range of .1 to .2 grams and be smaller than a pebble. It might be wrapped in a torn piece of plastic or have no wrapping at all. It is usually impossible to see drugs being exchanged, although a surveillance team might see money. Officers therefore rely on observations of very short interactions and interactions where someone enters a car and stays very briefly.
[39] Det. Lehman testified that sales are often conducted from vehicles. A parking lot is often chosen as a place to meet because buyers and seller can park without any problem and foot traffic makes close surveillance difficult.
[40] Det. Payment testified that, in his view, the persons who visited the Heron Road apartment on November 8 and 21, while Mr. Al Enzi and Ms. Bahlawan were there, may also have been buying drugs. On one occasion, visitors were seen lighting a crack pipe just after leaving. The visits were all very short. Det. Payment admitted, however, that the surveillance team did not actually observe any transactions between these visitors, Mr. Al Enzi or Ms. Bahlawan.
[41] In cross-examination, Det. Payment admitted that Ms. Bahlawan was usually not driving the red Honda when Mr. Al Enzi conducted the suspected drug transactions. Mr. Al Enzi generally took over the driving when she picked him up. There were also three occasions when police saw Mr. Al Enzi selling drugs outside of Ms. Bahlawan’s presence. She was never observed to handle any drugs or seen moving around inside the red Honda when there were individuals in the back seat.
[42] Det. Payment believed however that Ms. Bahlawan was, at a minimum, transporting drugs sold by Mr. Al Enzi in her car and aware of sales as they took place, given the close confines of the Honda. Both he and Det. Cox suspected that the Bahlawan home was being used as a “stash house” to store a supply of drugs for sale while the Heron Road apartment served as a “chop house” or distribution point. The basis of this belief was that Mr. Al Enzi was only ever seen selling drugs after he had been picked up by Ms. Bahlawan in the red Honda. The officers thought that they would find cocaine and crack cocaine when they searched the Bahlawan home.
[43] As of Nov. 22, 2016, Det. Payment had obtained three fresh search warrants. Ms. Bahlawan picked up Mr. Al Enzi at 18h00, they drove to1470 Heron Road and went inside. The search warrants for the Bahlawan home and the Heron Road apartment were executed a short time later.
Execution of the search warrants on November 22, 2016
[44] Members of the OPS tactical unit executed the three search warrants on the evening of November 22, 2016. Execution of the warrants for the Heron Road apartment and the Bahlawan home took place simultaneously. Police conducted the search of the Al Enzi home a short time later. The tactical squad used a dynamic entry at each location: rather than knocking and announcing their arrival, armed and masked officers broke down the door to each residence with a battering ram, threw a flashbang device inside, and ran in while ordering the occupants of the premises to get down on the floor. Once the tactical squad had secured the premises, other officers took over to search them.
(i) The search of the Bahlawan home
[45] Det. Getz and Sgt. Doug Hill testified about the search of the Bahlawan home. Det. Getz was the exhibits officer and team leader at this location. Three other officers, including Sgt. Hill, executed the search.
[46] Det. Getz ordered Sgt. Hill, who had not been previously involved in the investigation, to search the basement. Sgt. Hill has been an officer with the OPS for 17 years and was a detective in the drug unit in November 2016.
[47] Sgt. Hill recalled that he searched two rooms in the basement, a washroom and a bedroom. He began his search in the washroom, which was just off the main room. After not finding anything of note there, he began to search the bedroom.
[48] Sgt. Hill described the layout of the bedroom. He said there was a bed to the left of the entrance, and a horizontal shelving unit running the length of the room on the wall facing the door. There was a vertical shelving unit in the corner of the room. Sgt. Hill mentioned more storage and shelving, which he did not describe. He did not prepare a sketch of the bedroom or take a picture of it.
[49] Sgt. Hill described the bedroom as “cluttered”. In his view, it was being actively used by a woman. He based this impression on the fact that there were sheets on the bed, articles of clothing and shoes in the room, and an odor of perfume. There was also a stand with make-up just off the bedroom.
[50] Sgt. Hill seized a strip of photos pinned up on the wall near the bed. The photos were taken at a photobooth, the kind found at an amusement park or a shopping mall. The two persons in the photos were Ms. Bahlawan and Mr. Al Enzi.
[51] In searching the bedroom, Sgt. Hill said that he would have used his usual approach. He typically searches the bed first, then everything on each wall, going from high to low. He moves any containers that he has already searched to the bed, to keep track of what he has done.
[52] Sgt. Hill found the gun when he searched the vertical shelving unit. He said that each shelf in both the horizontal and vertical units formed a box that housed a cloth covered bin. A pink bin at the bottom of the vertical unit contained socks. Within this bin, Sgt. Hill found a Colt .32 calibre handgun with a box of Remington .32 calibre ammunition wrapped in a clear plastic bag, which was in turn inside a white Toys ‘R Us bag.
[53] As soon as Sgt. Hill found the bag with the gun and ammunition, he seized it and brought it upstairs so that it could be processed and transported to the police station. This ended Sgt. Hill’s involvement in the search.
[54] During his examination-in-chief, Sgt. Hill testified that he removed the pink bin from the shelving unit when he was going through it. He found the bag “sort of wrapped up” at the bottom of what he described as the “sock drawer”.
[55] In cross-examination, Sgt. Hill admitted that he could not remember how many bins there were in total in the storage units, although he thought there were at least six. He did not note whether any of the other bins he searched also contained socks, or whether there was any clothing aside from socks in the bin where the gun was found. He vaguely recalled that some of the socks were paired, although he was really not sure about this. He did not seize the bin or its contents as evidence, nor did he take detailed notes about the exact location and position of the bag with the gun and ammunition within the bin.
[56] Sgt. Hill also could not recall how exactly he searched the bins. In cross-examination, he acknowledged that he sometimes dumps the contents of a container on the floor during a search, and that he might have done so during the search at the Bahlawan home. Later on, he denied that he discovered the bag with the gun by dumping the socks out of the bin. According to the notes he took at the time, he looked through the bin, saw the bag, and took it out.
[57] Det. Getz testified that Sgt. Hill called out to him to let him know about his discovery of the gun and ammunition. This would have been about twenty-five minutes after the search was underway. Det. Getz went down to the basement. He recalled that there was a carpeted area at the bottom of the stairs, with a closet and a furnace room on the left, then a bedroom in the back.
[58] Det. Getz testified that “to me, it only looked like it would be Tamara Bahlawan’s bedroom” and that “it seemed pretty obvious to us that it was her room”. He based this conclusion on the fact that it was “clearly a female’s room”: there was female clothing, purses and shoes on the floor and a vanity with make-up and perfume. Det. Getz also mentioned the photo strip found on the wall.
[59] Like Sgt. Hill, Det. Getz recalled that the vertical shelving unit was in the corner of the bedroom but could not remember how many bins were in the unit. He did not mention how many storage areas he saw in the room as a whole.
[60] After Det. Getz verified that the gun was unloaded, he called Det. Cox, who was searching the Heron Road apartment. He told him that a gun had been found. He did this because the discovery required the police to tell Ms. Bahlawan and Mr. Al Enzi that they might face additional charges. Det. Getz recalled that he told Det. Cox that they had found an unloaded handgun and some ammunition in Ms. Bahlawan’s bedroom. In his testimony, he referred to its location as a “pink underwear basket”, because he recalled seeing underwear in the bin.
[61] When the gun was processed, police did not find any physical evidence linking Ms. Bahlawan to it. Her fingerprints and DNA were not found on the clear plastic bag, the gun, the box of ammunition, or the Toys ‘R Us bag. The police did match fingerprints on the clear plastic bag and the Toys ‘R Us bag to another individual, a man named Turgut Ali Sahin. There is no evidence that Ms. Bahlawan had any relationship with or knew Mr. Sahin.
[62] Aside from the bag with the gun and the photo strip, the only other evidence seized from the Bahlawan home was a single bottle of pills and a record of a prescription made out to Ms. Bahlawan. Surprisingly, Sgt. Getz did not record where these items were found. I infer that they were not found in the basement washroom or bedroom, as Sgt. Hill did not mention them. The pills seized at the Bahlawan home were identified as Seroquel, an anti-anxiety or anti-psychotic medication. The discovery of the pills did not lead to any additional charges being laid against Ms. Bahlawan.
[63] The police did not find any illegal drugs or drug-related paraphernalia, or any large amounts of cash, during their search of the Bahlawan home, which continued after Sgt. Hill left.
(ii) The search of the Heron Road apartment
[64] Det. Cox, Det. Payment, Const. Jenny Campbell and Officer Gurjoyt Gill testified about the execution of the search warrant for the Heron Road apartment. Officer Gill was a member of the tactical squad. Const. Campbell was assigned to assist the investigative team that day.
[65] The apartment was a small, one-bedroom unit. On entering the unit, there was a kitchen area off to one side and a living room directly ahead. Const. Campbell had a clear recollection of the furniture in the living room, which she searched personally. She testified that there were two wicker chairs with cushions, and a nightstand along the wall at the far end of the room. Officer Gill recalled that there was a balcony off the living room, separated by a glass sliding door. He remembered this detail because, after the tactical squad arrived, they corralled a large Pitbull onto the balcony.
[66] Det. Payment made a sketch of the apartment’s layout. In cross-examination, he admitted that the diagram was inaccurate in that it did not show the sliding door from the living room to the balcony. I do not consider that this lapse has any impact on Det. Payment’s general reliability as a witness.
[67] There were four people in the apartment when the police arrived: Mr. Al Enzi, Ms. Bahlawan, the tenant Mr. McCorkle, and Serge Parent.
[68] Officer Gill was in the apartment for only about five minutes. When he entered the apartment, he saw two men (subsequently identified as Mr. Al Enzi and Mr. Parent) lying on the floor of the living room and a woman (Ms. Bahlawan) sitting on a couch. He did not recall seeing Mr. McCorkle. He did not see where Mr. Al Enzi and Mr. Parent were sitting before they got on the floor. He and other members of the tactical unit left the apartment when the investigative team conducting the search arrived a few minutes after 19h00.
[69] Det. Payment recalled that all four occupants of the apartment were sitting either on the floor of the living room or on the couch when he and his team arrived. He announced that they were all under arrest for possession of drugs for the purpose of trafficking, because a package of drugs was in plain view on one of the wicker chairs.
[70] Det. Cox searched Mr. Al Enzi and found a wad of cash totalling $1170, four and a half fentanyl patches, and a knife in his waistband. Det. Cox cautioned him and read him his rights. Mr. Al Enzi was cooperative.
[71] After assuming custody of Ms. Bahlawan from Det. Cox., Const. Campbell told her again that she was under arrest on drug charges and cautioned her. She searched Ms. Bahlawan’s person and found nothing of note. She described Ms. Bahlawan as cooperative and calm.
[72] At 19h50, Det. Cox got a call from Sgt. Getz, who told him that a gun had been found in Ms. Bahlawan’s “underwear drawer”. Det. Cox shared this news with the other police officers in the apartment and advised Const. Campbell to charge Ms. Bahlawan for possession of a firearm. He testified that everyone in the living room and hall could hear what he said.
[73] Det. Cox testified that Ms. Bahlawan became visibly upset and began to cry. Mr. Al Enzi then spontaneously said: “She has nothing to do with this gun. It’s mine. I slipped it into her room. She has nothing to do with it.” Det. Cox told Mr. Al Enzi not to say anything more until he was re-advised about his rights, as he was also being charged with firearms offences.
[74] Det. Payment also recalled how Ms. Bahlawan and Mr. Al Enzi reacted to the news that a gun had been discovered and that she would be charged with firearms offences. She began to cry and made eye contact with Mr. Al Enzi. Det. Payment made a note of what followed as it occurred. He noted that Mr. Al Enzi said: “The gun is mine. It’s not hers. I slipped it in her room the last time I was over. She knows nothing about it.” Det. Payment recalled that Mr. Al Enzi then looked at Ms. Bahlawan directly again and said: “You’re good, baby, I got it”.
[75] Det. Payment stated that he tried to write down Mr. Al Enzi’s words as he spoke. He said that, despite this, part of his note was incorrect. He recalled that Mr. Al Enzi said he slipped the gun into Ms. Bahlawan’s drawer, not her room.
[76] In his examination in chief, Det. Payment implied that he advised Mr. Al Enzi of his rights with respect to the firearm charges only after Mr. Al Enzi made his statement about the gun. In cross-examination, he clarified that he was in the midst of cautioning Mr. Al Enzi for a second time when Mr. Al Enzi confessed. After Det. Payment finished the caution, Mr. Al Enzi provided him with the name of his lawyer and said that he would tell the police what they wanted. He repeated that it was his gun and asked that the police to please not charge Ms. Bahlawan.
[77] Const. Campbell also testified about what happened after Det. Cox announced that a firearm had been discovered. She told Ms. Bahlawan that she was being arrested for firearms offences and Ms. Bahlawan began to cry. Because she had distanced herself from the living room at this stage, Const. Campbell said was not aware of any other conversations taking place in the apartment about the discovery of the gun.
[78] I generally accept as reliable the evidence of Det. Cox and Det. Payment about Mr. Al Enzi’s statements on learning about the gun. This does not mean that I must accept Mr. Al Enzi’s statements as true. I also find that Mr. Al Enzi made the statements while knowing that he and Ms. Bahlawan were facing firearms charges. I will discuss this further later.
[79] With respect to the specific words used by Mr. Al Enzi, I prefer the version captured in Det. Payment’s contemporaneous note to his recollection on the stand four years later. Det. Payment stated that he made the note as Mr. Al Enzi was speaking. The reference to the gun being slipped into Ms. Bahlawan’s room is consistent with Det. Cox’s recollection and his investigative action report on the search created hours later. I therefore find that Mr. Al Enzi said that he slipped the gun into her room as opposed to her drawer.
[80] At 20h29, officers arrived to bring Ms. Bahlawan and Mr. Al Enzi to the police station. After they left, Const. Campbell searched the living room. She found:
• Two functioning cell phones on the couch;
• a clear plastic bag with a small quantity of marijuana (.04 grams) under a cushion of a white wicker chair.
• a bundle of green plastic on top of the cushion of a second wicker chair. Inside, she found smaller bags wrapped in torn pieces of plastic. Two of the smaller bags contained a hard, rock like substance. Other bags contained pills. Later analysis of the bundle showed that it contained a total of 16 grams of crack cocaine, 21 oxycodone pills, and 20 hydromorphone pills; and
• Two digital scales in the drawer of the nightstand.
[81] The drugs in the bundle on the second chair are the basis for the drug charges against Ms. Bahlawan. Const. Campbell testified that she has been involved in over two hundred drug investigations in Ottawa. In her experience, crack cocaine can be sold in quantities as small as .1 gram. She testified that drugs are typically bundled in torn plastic, in small portions, because these are the amounts that are typically sold in street-level transactions.
[82] Both Det. Payment and Const. Campbell described the green plastic bag as about the size of a golf ball. They each said that it could easily fit in someone’s pocket and that, based on their experience, it looked like a bundle that was ready to give to a street dealer.
[83] The bundle was in plain view on top of the seat cushion when the police arrived. Const. Campbell testified that it is not unusual for people to toss drugs away when police arrive to execute a search warrant.
[84] Det. Payment searched Mr. McCorkle and Mr. Parent. Like Ms. Bahlawan, they did not have anything on their persons that the police considered relevant enough to seize. Mr. Al Enzi was the only person in the apartment that day who was in personal possession of drugs, a large amount of cash, or a weapon.
[85] Mr. Parent was transported to the police station along with Mr. Al Enzi and Ms. Bahlawan. Mr. McCorkle was released with an undertaking to appear. According to Det. Cox, Mr. McCorkle appeared to have a limited understanding of what was going on and was very cooperative. Det. Payment testified that he did not want to make him leave the apartment when the door had been smashed in by the tactical unit.
[86] Det. Payment testified that all four occupants of the apartment appeared to be in good health. They were not fidgety or making uncontrolled movements, behaviour he described as common for people using crack cocaine. During the nine days of surveillance, he saw nothing and was not aware of anything indicating that Mr. Al Enzi and Ms. Bahlawan were using drugs or under the influence of drugs.
(iii) The search of the Al Enzi home
[87] Det. Lehman and Sgt. Smith searched the Al Enzi home. Sgt. Smith searched the second floor and found nothing. Det. Lehman searched the basement and found pills in a Louis Vuitton bag under a futon in a basement bedroom. There were 17 diazepam pills, 11 temazepam pills, 81 oxycodone pills, and 70 hydromorphone pills. A label indicated that the hydromorphone was prescribed for Serge Parent.
[88] Det. Lehman also found two Apple phones and a Blackberry device on top of the futon, and a functioning digital scale elsewhere in the same bedroom.
[89] Det. Payment testified that, in addition to drugs, the police found a substance at the Al Enzi home known as “buff”, which is mixed with cocaine to extend the quantity for sale, and $3900 in cash.
Evidence of Sgt. Pilon
[90] Sgt. Pilon has been a police officer for over twenty-five years and has worked for the OPS since 1999. He was not involved in the Al Enzi/Bahlawan investigation but testified as an expert on drug trafficking.
[91] Sgt. Pilon’s evidence was helpful in explaining the potential significance of the evidence seized at the Heron Road apartment. He confirmed the testimony of Det. Payment and Const. Campbell that the bundle of drugs found on the seat cushion at the Heron Road apartment was the type of package that a street level dealer would carry on his person, in terms of how the drugs were packaged and the quantities of drugs in the bundle. He also said that the size of the piece of crack cocaine in the bundle was more than what would be typically sold to a single buyer. A trafficker would chip off small pieces for street level sales, often as they were taking place.
[92] Sgt. Pilon noted that four and half patches of Fentanyl, the quantity in Mr. Al Enzi’s pocket when he was arrested, was a significant quantity of drugs. These patches, cut into pieces, could be sold for a total of $800 to $1000. He estimated that the crack cocaine found in the bundle on the chair could be resold for $600 to $1200.
[93] On cross-examination, Sgt. Pilon stated that individuals who have drugs on their person often throw them away when they hear the police arrive. A dynamic entry is intended to prevent this from happening, but it is not foolproof. The size and shape of the bundle of drugs found on the seat at the Heron Road apartment would have made it easy to throw. Sgt. Pilon agreed that it would have been useful to know whether the door to the balcony was open when the police arrived. If it had been open, this might suggest that the person who had the drugs intended to throw it outside, over the balcony, so that it would not be found.
[94] Sgt. Pilon’s evidence was also helpful in explaining how drug traffickers typically conduct their sales. He stated that drug traffickers usually operate from multiple locations other than their own homes. Selling drugs from cars is common, because it gives traffickers mobility and it is hard or impossible to see what is going on inside a vehicle.
[95] In Sgt. Pilon’s view, Mr. Al Enzi used his home both as a base and a place to store drugs for sale. He based this conclusion on the fact that more hydromorphone and oxycodone was found at the Al Enzi home than at the Heron Road apartment, along with a significant amount of cash and tools to prepare cocaine for sale (scales, buff), even though no cocaine or crack cocaine was found on the premises on November 22, 2016.
[96] Sgt. Pilon testified that the Bahlawan home was nonetheless relevant to the investigation because the drug activities observed by the OPS began each day after Ms. Bahlawan drove from her house to pick up Mr. Al Enzi. He noted that the red Honda appeared to be Mr. Al Enzi’s only mode of travel to conduct his operations, or at least the mode that he chose to use. Sgt. Pilon stated that, in his experience, it is not uncommon for the spouses and girlfriends of drug traffickers to be involved in drug sales. He testified about the advantages, from a trafficker’s perspective, of dealing from a car, particularly a car that belongs to somebody else.
[97] Sgt. Pilon expressed the opinion that Ms. Bahlawan was aware that Mr. Al Enzi was selling drugs from her red Honda. He conceded that someone in a car might not necessarily be aware of a single drug sale by another occupant, because a pill or piece of crack cocaine is generally so small that it can be handed over to another person without being seen. In reviewing the surveillance reports, however, he identified 18 suspected drug transactions. This included ten transactions when Mr. Al Enzi and Ms. Bahlawan were sitting next to each other in the red Honda and five when she was in close proximity. Only three transactions took place when Mr. Al Enzi was alone. Given the number of drug transactions that Mr. Al Enzi conducted from the red Honda, and the likelihood that he was chipping pieces of crack cocaine off a larger piece of the drug while in the car, Sgt. Pilon did not think that Ms. Bahlawan could have failed to observe what was happening.
[98] In cross-examination, Sgt. Pilon admitted that the police did not observe anything during their surveillance that showed that Ms. Bahlawan handled or sold drugs, or that she was in personally in possession of drugs or any proceeds of crime.
[99] Sgt. Pilon considered the gun found in the basement to be consistent with the Crown’s theory that Ms. Bahlawan was directly involved in trafficking, because firearms are a common commodity in the drug trade, and they are often used by dealers to enforce payments. He did not find it unusual that a trafficker would store a gun at a location other than his home, so long as he had the means to gain access to it on short notice. In cross-examination, however, Sgt. Pilon agreed that the absence of a photo or drawing or notes about the gun’s location in the Bahlawan home was problematic. He acknowledged that the gun may or may not have been visible, depending on how it was stashed.
[100] I accept Sgt. Pilon’s testimony regarding the significance of drugs and other items seized during the search and how drug traffickers operate. I also give considerable weight to his conclusion that Ms. Bahlawan knew about Mr. Al Enzi’s drug sales in her car. His conclusion was rational and founded on the evidence he reviewed, coupled with his expertise with respect to the drug trade.
(3) Evidence of Mr. Al Enzi
[101] Summarizing Mr. Al Enzi’s evidence is extremely difficult. He often contradicted himself. He had stunning memory lapses. Some of his testimony was simply implausible. He refused to answer straightforward questions put to him by Ms. Bahlawan’s lawyer, who called him as a witness, with respect to contradictions between his November 22, 2016 statement about the gun and his statutory declaration made as part of his plea deal. As a result, defence counsel was given leave to cross-examine him as an adverse witness on this issue pursuant to s. 9(1) of the Evidence Act, R.S.C. 1985, c. C-5. When it became apparent that Mr. Al Enzi had a more general hostility towards respecting his oath to tell the truth regarding matters central to the defence, he was declared a hostile witness.
[102] I will first summarize what he said prior to being cross-examined with respect to his 2019 statutory declaration and evidence that was not impacted by this cross-examination. Then I will recap what he said in cross-examination. Since Mr. Al Enzi was not a reliable witness, I will not summarize all of his testimony, but instead focus on those elements relevant to the case against Ms. Bahlawan.
(i) Mr. Al Enzi’s evidence prior to cross-examination
[103] Mr. Al Enzi said that he met Ms. Bahlawan through social media or a friend. They were involved for seven or eight years. Their relationship effectively ended in November 2016, when they were arrested and ordered not to communicate with each other.
[104] Mr. Al Enzi said that he only sold drugs for a few months in 2016. He could not remember when exactly he started. He also could not remember the name of his supplier or any of his customers, or how many drug sales he had made. He initially estimated that he had four or five regular customers and perhaps ten non-regular customers, but later conceded that he did not really recall.
[105] Mr. Al Enzi claimed that he got his start in drug sales by approaching a man, whose name he could not recall, at a store or gas station. He said that he had seen the man before and knew him to be “into that lifestyle”. When asked to describe the man, Mr. Al Enzi offered a generic description of a white man in his thirties. He did recall that the first drug supplied to him was crack cocaine. He said that the man agreed to sell drugs to Mr. Al Enzi because he knew his brothers and knew that they would not report crimes to the police.
[106] Mr. Al Enzi was on house arrest in October and November 2016. He admitted that he breached conditions by leaving the house without his surety and by staying out past 20h00. At the time, he was awaiting trial on 2015 charges of robbery and assault with a deadly weapon. Police alleged that he and his brother Abdul had pistol whipped someone during a robbery. According to Mr. Al Enzi, the victim lied because he was trying to extort the Al Enzi family. Mr. Al Enzi acknowledged that he had been charged with other criminal offenses but said that he could not recall many details or that he had been falsely charged and, on some occasions, had pled guilty even though he was innocent.
[107] Mr. Al Enzi admitted that he was selling drugs while he was with Ms. Bahlawan but said that she was unaware of this at the time. He stated that these sales took place while they were in the Heron Road apartment, when they were “just chilling at a friends’ house, pretty much”. He said that he would take buyers into the washroom so that Ms. Bahlawan could not see what he was doing. The transactions at the Heron Road apartment involved supplying crack cocaine for cash or pills.
[108] Mr. Al Enzi said that he met “Nate” in 2016. It was unclear whether he remembered Mr. McCorkle’s surname. Spending time at the Heron Road apartment allowed Mr. Al Enzi and Ms. Bahlawan to be a couple, something they could not do in their parents’ houses. Mr. McCorkle also kept Mr. Al Enzi’s dog for him. Mr. Al Enzi supplied Nate with drugs but also described him as a friend. Mr. Al Enzi could not remember if he gave him crack cocaine as payment for services but conceded that they had some sort of agreement. Mr. Al Enzi denied that he stashed drugs at the Heron Road apartment or that he had a key to the apartment.
[109] According to Mr. Al Enzi, the transactions observed by the police in the red Honda were purchases of narcotics for his personal use. Later in his testimony, he said that he also sometimes traded crack cocaine for pills. He suggested, at one point, that the individuals who entered the backseat of the Honda may have been selling him designer cologne or videos at a discount. Despite his assertion that he dealt crack cocaine to obtain drugs for his own use, however, Mr. Al Enzi admitted that his income in October and November 2016 was solely from drug sales.
[110] Mr. Al Enzi denied that he ever saw Ms. Bahlawan selling drugs, or that he ever sold drugs in her presence, or that she ever knowingly drove him somewhere so he could sell drugs to someone else. He told her that he was buying pills for his personal use. She did not approve of this and threatened to break up with him if he did not stop taking drugs.
[111] When defence counsel reviewed the October and November 2016 surveillance reports with Mr. Al Enzi, he said he had no recollection of any of the individuals he dealt with except Mr. Parent. He grudgingly admitted some interactions may have been drug sales and was at a loss to provide any other explanation for hand to hand transactions. He said that his drug use had affected his memory, and that he was “pretty bad with names”. Mr. Al Enzi admitted that he could have sold crack cocaine to the man who was seen lighting a crack pipe after spending a few minutes in the back seat of the red Honda on October 26.
[112] Mr. Al Enzi denied that he himself had ever cooked crack cocaine or that he knew how to do so. In an interesting lapse into the present tense, he testified that “I usually get it prepared”. When advised that buff, a substance mixed with cocaine to extend the quantity for sale, had been seized from his house, he could not explain why. He then contradicted himself, saying that there was only one type of buff at the Al Enzi home, and that he got it from the same nondescript supplier mentioned earlier.
[113] When asked about his visits to the Bahlawan home, Mr. Al Enzi denied that he was there in 2016. He and Ms. Bahlawan broke up in 2015 but got together again about eight months later, when he went on house arrest. He said that he did not visit the Bahlawan home after the break-up, because Ms. Bahlawan’s parents did not approve of him.
[114] Mr. Al Enzi admitted that he knows Turgut Ali Sahir, the individual whose prints were found on the bags containing the gun found at the Bahlawan home. Mr. Sahir is a friend of his brother Khalid and lived in the same neighbourhood as his father’s second wife. Mr. Al Enzi said that he does not know if Mr. Sahir deals drugs, but then acknowledged that he was recently charged with marijuana offenses. He did not recall ever introducing Mr. Sahir to Ms. Bahlawan, he never saw them together and did not think that they had any connection except through him.
[115] Mr. Al Enzi denied that the bundle of drugs found on the wicker chair at the Heron Road apartment on November 22 was his, although he admitted that it was the kind of bag of drugs he might have carried around for the purpose of sales. Mr. Al Enzi also denied that he threw the bundle across the room when the police entered the Heron Road apartment. Mr. Al Enzi claimed that he was surprised by the raid, that he had taken pills before the police arrived and that he was “out of it”.
[116] Mr. Al Enzi admitted that, when police told him that a gun had been found at the Bahlawan home, he told them that the gun was his. He did not recall exactly what he said, but he agreed that he might have said that he slipped the gun into Ms. Bahlawan’s room and she had nothing to do with it. Mr. Al Enzi testified that these statements were false and that he knew nothing about the gun. He also said that the police failed to caution him when he was arrested on the drug charges, and that he was told about his right to remain silent only after he confessed.
[117] Mr. Al Enzi testified that he lied because he did not want Ms. Bahlawan to be charged with firearms offences. He was not worried about doing this because he was confident that the Crown would not be able to prove a case against either one of them. He retracted his confession about the gun when he made a plea deal in 2019 because, for the sake of his family, he wanted to avoid a criminal trial.
(ii) Mr. Al Enzi’s evidence under cross-examination
[118] Mr. Al Enzi’s 2019 statutory declaration contradicted the testimony I have just summarized in significant ways. Notably, he testified that the bundle of drugs found at the Heron Road apartment was not his, and that the pills found at the Al Enzi home were for his personal use and not for resale. These assertions contradict his admissions, at paras. 6 and 9 of the declaration, that he was in possession of these drugs for the purpose of trafficking.
[119] When cross-examined as to why he purportedly made false statements in his declaration, Mr. Al Enzi offered a variety of explanations. He said, for example, that he did not understand what possession meant at the time, and that he did not realize that he was making a statement under oath. Finally, he suggested that he signed the declaration, despite its inaccuracies, on the advice of legal counsel.
[120] After Mr. Al Enzi offered this last explanation, he was given an opportunity to seek legal advice on the potential implications of waiving solicitor-client privilege. After consulting a lawyer, he returned to the witness box and declared that “everything” in the statutory declaration was true, and that he now realized, contrary to his earlier sworn testimony, that he had in fact been in possession of the drugs found at the Heron Road apartment and the Al Enzi residence on November 22, 2016, and that the purpose of his possession of the drugs was to traffic them. He explained that he had denied being in possession earlier because, just prior to the police raid, he had given the bundle of drugs to someone else who was there. With respect to the drugs at his house, he said that he had intended to sell only one or two pills, and that he had not thought that this amounted to trafficking.
[121] Mr. Al Enzi’s evidence about his opportunity to put the gun in Ms. Bahlawan’s room also changed under cross-examination. He briefly denied that he had ever been inside the house, even though he earlier admitted being there in 2015. He then contradicted himself again, admitting that he had been there more than once, but only “a long time ago”. When questioned further, he admitted that he had been in the house ten to fifteen times and had even stayed there overnight (but not in Ms. Bahlawan’s bedroom) prior to a trip with her to Toronto or Niagara Falls in 2013 or 2014.
[122] There was one issue on which Mr. Al Enzi did not waver under cross-examination. As already mentioned, Mr. Al Enzi stated in his 2019 declaration that his November 22, 2016 confession about the gun was a lie. In paras. 11 to 14 of the declaration, he swore as follows:
(11) I am aware that a search was conducted at Tamara Bahlawan’s residence at 21 Shandon Avenue and the following was located in a basement bedroom drawer:
• a black Colt .32 calibre handgun serial number 31731 with a box of Remington .32 calibre ammunition wrapped in a plastic bag inside a reusable grocery bag.
(12) As a result of this search and while Tamara and I were under arrest at the Heron Road apartment, police advised that Tamara would also be charged with firearms related offences. When advised, I observed that she began to cry. While under caution for the drug charges, I immediately said that the gun was mine. I said that I slipped it in her drawer the last time I was over and that I would tell police anything they want if they didn’t charge her.
(13) Despite making this statement, the gun was not mine. I did not possess or have any legal interest in any of the items that were found at Shandon Avenue. I do not reside at Shandon Avenue.
(14) I made those statements to police in the hopes that Tamara would not be charged. Instead, we were both jointly charged with multiple firearms offences in addition to the drug offences.
[123] Mr. Al Enzi maintained throughout his testimony that his retraction of the gun confession in the same declaration was true, except that he was not in fact cautioned before he made the confession, contrary to para. 12.
[124] It should be apparent, based on this summary of Mr. Al Enzi’s evidence, that he had very little credibility and that his testimony must be treated with the utmost of caution. I shall make further comments on Mr. Al Enzi’s credibility, and what use may be made of his evidence and his November 22, 2016 confession, when I consider the specific charges against Ms. Bahlawan.
Has the Crown proved the drug charges against Ms. Bahlawan?
[125] Ms. Bahlawan is charged with possession, for the purpose of trafficking, of crack cocaine, oxycodone and hydromorphone found in a plastic-wrapped bundle on the wicker chair at the Heron Road apartment on November 22, 2016. There is no dispute that the drugs found are the type and quantity alleged. Date, jurisdiction and identity are admitted. The only issue is whether the Crown has proved that Ms. Bahlawan possessed the drugs for the purpose of trafficking.
[126] Since the drugs were not found in Ms. Bahlawan’s personal possession, the Crown relies on three different theories to prove possession:
(i) constructive possession under s. 4(3)(a)(i) or (ii) of the Criminal Code;
(ii) joint possession under s. 4(3)(b) of the Code; or
(iii) aiding and abetting under s. 21(1)(b) or (c) of the Code.
(i) Has the Crown proved that Ms. Bahlawan had constructive possession?
[127] Section 4(3) sets out the criteria for constructive and joint possession, as follows:
s. 4(3) For the purposes of this Act,
(a) a person has anything in possession when he … knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[128] Based on the test set out in R. v. Pham, 2005 CanLII 44671, 77 OR (3d) 401 (ONCA), at para. 15, in order to satisfy s. 4(3)(a), the Crown must prove beyond a reasonable doubt that Ms. Bahlawan had knowledge of the drugs “beyond mere quiescent knowledge” and “some measure of control over them”.
[129] The Crown argues that Ms. Bahlawan’s knowledge and control can be inferred based on the surveillance evidence showing her involvement in selling drugs in October and November 2016. She was repeatedly observed picking up Mr. Al Enzi from his house in her red Honda and then driving with him to locations where hand to hand drug transactions took place, and to the Heron Road apartment, where drug sales were also conducted.
[130] I have no doubt that Mr. Al Enzi was selling crack cocaine and other drugs from Ms. Bahlawan’s car. There is no other plausible explanation for what police observed during their surveillance, the record of which I accept as accurate. Mr. Al Enzi and Ms. Bahlawan were seen on multiple occasions driving her car to clearly prearranged meeting spots, where individuals approached him to do furtive hand to hand transactions through the driver’s window or in the backseat of the car. I accept the evidence of police officers with extensive experience in drug investigations, including Sgt. Pilon, that these interactions were drug sales.
[131] Because of the way these exchanges were made, and the small quantities involved, officers engaged in the surveillance could not see what Mr. Al Enzi was handing to other individuals or what they were giving him in return. Beyond the highly suspicious way in which these meetings took place, however, the police’s direct observations lead to the inescapable conclusion that Mr. Al Enzi was selling crack cocaine. On October 24, officers saw a person approaching the red Honda pull money out of his pocket and place it in the car. On October 26, 2016, a person who had just conducted a hand to hand transaction with Mr. Al Enzi was seen lighting a crack pipe a few minutes later. The same thing happened on November 8, after a couple visited the Heron Road apartment while Mr. Al Enzi and Ms. Bahlawan were there.
[132] There is also the fact that Mr. Al Enzi admitted trafficking drugs in his 2019 statutory declaration. Since Mr. Al Enzi has so little credibility, I prefer not to rely on any sworn statement he has made. Given the evidence of the surveillance team and Sgt. Pilon, however, I do not have to place any weight on Mr Al Enzi’s declaration to conclude that he was selling drugs from the red Honda in October and November 2016.
[133] I also have no doubt that Ms. Bahlawan knew what Mr. Al Enzi was doing. Given the close confines of her car and the number of transactions observed, Ms. Bahlawan must have seen Mr. Al Enzi exchanging crack cocaine for cash or pills through the car window or in the back seat on more than one occasion. In the alternative, she was willfully blind to what he was doing.
[134] Ms. Bahlawan also had some measure of control over Mr. Al Enzi’s drug dealing in the red Honda. On November 3 and 21, she herself drove the car to the site of drug sales. Even when she was not the person driving, Ms. Bahlawan controlled the transportation of the drugs by picking Mr. Al Enzi up at his house, sometimes minutes before a drug sale, and providing him with the means and venue to make sales.
[135] As a result, had Ms. Bahlawan been arrested in the red Honda and had drugs been found in the car at the time, I may have had a basis to find that she had constructive possession of them for the purpose of trafficking, even if the drugs were not in her personal possession.
[136] The question, however, is whether I can find, beyond a reasonable doubt, that Ms. Bahlawan had constructive possession of the drugs found at the Heron Road apartment, that is, that she had knowledge and some measure of control over them at that location.
[137] Proof of knowledge and control may be inferred based on circumstantial evidence. For example, I could properly infer that Ms. Bahlawan must have known about the drugs on the chair and had some control over them if there were compelling evidence that she was in occupation of the Heron Road apartment, that drugs were found in plain view in a common area of the apartment, and that a scale or other paraphernalia were found in a bedroom that she used. This was the fact scenario in R. v. Sparling, [1988] O.J. No. 107 (HCJ), [1988] OJ. No. 1877 (ONCA).
[138] The facts in this case are however markedly different than those in R. v. Sparling.
[139] Based on the evidence of Sgt. Pilon and Const. Campbell as well as common sense, the drugs were probably not sitting in plain view prior the raid. It is far likelier that someone threw the bundle across the room when the police started to break the door down.
[140] There is also not evidence beyond a reasonable doubt that Ms. Bahlawan knew that Mr. Al Enzi had these drugs, even if I assume that they were on his person prior to being tossed on the chair. According to Const. Campbell and Det. Payment, the bundle was small enough to fit inside someone’s pocket. This means that Ms. Bahlawan would not necessarily have seen or been aware of it prior to the raid.
[141] The Crown argues, based on R. v. Aiello, (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (ONCA), at para. 14, aff’d 1979 CanLII 31 (SCC), [1979] 2 SCR 15, that it does not have to prove that Ms. Bahlawan knew about the specific drugs that Mr. Al Enzi was carrying. It must only prove beyond a reasonable doubt that Ms. Bahlawan knew that he had “a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug”.
[142] The facts in R. v. Aiello are again very different from the facts in this case. The accused in R. v. Aiello picked up a package which he suspected, but did not know for sure, contained heroin.
[143] In this case, by contrast, I cannot conclusively find that Ms. Bahlawan knew that Mr. Al Enzi was in possession of any drugs on November 22. He was not seen trafficking drugs every day he was observed with her. On November 9, no transactions were observed. On November 10, they were seem renting a car and driving off towards Montreal. On other days, although suspected drug transactions were observed, they spent most of their time doing other things, such as shopping, going to a movie, or simply spending time together at the Heron Road apartment. On November 22, they drove to the Heron Road apartment without making any stops along the way.
[144] I cannot, in fact, preclude the reasonable possibility that the drugs, although in Mr. Al Enzi’s possession, were not transported to the apartment that day by him. No crack cocaine was found at the Al Enzi home. I accept Sgt. Pilon’s evidence that the Al Enzi home was probably the base of his operations. It does not follow, however, that the crack cocaine and narcotics found at the Heron Road apartment on November 22 came from his house. They could have been brought there by someone else, notably Mr. Parent.
[145] In these circumstances, I cannot find that Ms. Bahlawan must have known that Mr. Al Enzi was carrying illegal drugs on November 22, or that she was reckless or willfully blind to this possibility. Since the Crown’s case is based on circumstantial evidence, if there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt; R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 35.
[146] Since I could reasonably infer that the narcotics and crack cocaine were in Mr. Al Enzi’s pocket up to the time of the raid and therefore not in plain view before the police arrived, and that he did not necessarily transport them to the apartment in Ms. Bahlawan’s car, she would not necessarily have known or suspected that Mr. Al Enzi had any illegal drugs when the police arrived. I therefore cannot conclude beyond a reasonable doubt that Ms. Bahlawan necessarily knew that the drugs found on the chair were on the premises before the police arrived.
[147] In light of this, on the knowledge element alone, I must conclude that the Crown has not proved that Ms. Bahlawan had constructive possession of the drugs.
(ii) Has the Crown proved that Ms. Bahlawan had joint possession?
[148] Pursuant to s. 4(3)(b), “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them”.
[149] In order to find that Ms. Bahlawan had possession of the drugs, I must first find that Mr. Al Enzi had possession of them. On this point, the Crown relies on Mr. Al Enzi’s admission, for the purpose of his 2019 plea deal, that he was in possession at the time of the raid.
[150] Mr. Al Enzi was the opposite of a credible witness. Much or most of his evidence was clearly unreliable, because it contradicted other reliable evidence, was internally inconsistent or implausible.
[151] I cannot assume that Mr. Al Enzi felt any obligation to tell the truth because he was under oath. Mr. Al Enzi’s history shows that he has little regard for the court’s orders or the law. He has a criminal record. He swore a statutory declaration, under oath, as part of a plea deal but, in his evidence at this trial, denied that central elements of that declaration were true, before changing his mind again and saying that most of it was true. None of his explanations for at first denying that he was in possession of the drugs are plausible. He was represented by a lawyer when he made the declaration, and even negotiated some of the wording in it. I do not believe that he did not understand what it meant to be in possession of drugs, or that he had given them to some other, unidentified person, just prior to the raid, or that the drugs at the Al Enzi home were for his personal use only.
[152] Given his general lack of credibility and the enormous contradictions in his evidence, I must treat Mr. Al Enzi’s testimony with the utmost caution.
[153] Despite this, I have no reasonable doubt that Mr. Al Enzi was in possession of the drugs found at the Heron Road apartment on November 22, 2016. It is true that Mr. Parent was also present, that he is known by the OPS to be a seller of crack cocaine, and that he was seen visiting the apartment on at least one other occasion. During his testimony, however, Mr. Al Enzi went to extraordinary lengths to avoid saying anything that would implicate himself. His retraction of the gun confession shows his keen instinct for self-preservation. I do not believe that Mr. Al Enzi would have taken responsibility for the drugs, and served time in prison for a drug offence, if they in fact belonged to Mr. Parent.
[154] In order for me to find that Ms. Bahlawan jointly possessed the drugs with Mr. Al Enzi, however, I must show that she knew about them and had some measure of control over them; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357.
[155] I have already concluded that Ms. Bahlawan did not necessarily have knowledge of he drugs in Mr. Al Enzi’s possession that day. With respect to control, there is no evidence that Ms. Bahlawan ever handled any drugs directly. Ms. Bahlawan was never observed making any hand-to-hand transactions with buyers or interacting with them in the car like Mr. Al Enzi. She was never observed carrying anything into the Heron Road apartment or interacting with people who may have visited the apartment to buy drugs. There were also no drugs found at Ms. Bahlawan’s home, or any items associated with drug trafficking, such as scales, cash or spare cell phones.
[156] Finally, there is no evidence that Ms. Bahlawan had any control over what occurred at the Heron Road apartment. There was no evidence that she had a key to the unit, which was rented in Mr. McCorkle’s name. There is no proof she ever spent a single night there, or that she was ever invited there without Mr. Al Enzi.
[157] It is not enough the Crown to show that Ms. Bahlawan was a regular visitor to the Heron Road apartment; R. v. Grey, 1996 CanLII 35. Her knowledge and control of drugs found on the premises cannot be inferred simply because she was present at the time of the raid.
[158] Ms. Bahlawan only exercised a measure of control over the drugs sold by Mr. Al Enzi when he, and the drugs he sold, were in her car, because she then had the ability to transport them from one place to another. There is no evidence that she had any measure or right of control over drugs elsewhere, including those seized in the Heron Road apartment.
[159] For this reason, the Crown’s case on joint possession fails.
(iii) Has the Crown proved that Ms. Bahlawan aided Mr. Al Enzi?
[160] Section 2(1)(b) and (c) of the Criminal Code state that a person is a party to an offence if they do or omit to do anything for the purpose of aiding another person to commit the offence or abet them in committing it.
[161] In R. v. Kumar, 2006 BCSC 1686, Justice Bruce described what the Crown must proved under s. 2(1):
Mere presence at the scene of a crime is not sufficient to establish culpability as a party: R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, 8 C.R. (3d) 349. To be convicted as a party to an offence by abetting, pursuant to s. 2(1)(b) of the Code, requires an act or omission that facilitates the commission of the offence done with the purpose of aiding the principal offender. The mens rea element is satisfied if the Crown proves beyond a reasonable doubt that the accused intended the consequences that ensued from his act in furtherance of the crime because he had actual knowledge of the offence intended by the principal actor or he was wilfully blind as to the proposed intentions of this person.
[162] The Crown argues that the evidence establishes that Ms. Bahlawan was a willing, knowledgeable participant in drug trafficking that took place both in her car and at the Heron Road apartment.
[163] I accept that Ms. Bahlawan knew about Mr. Al Enzi’s drug sales in her car. I cannot infer, based on this, that she knew about the drug sales at the Heron Road apartment, or that she did anything to assist with such sales beyond transporting Mr. Al Enzi there.
[164] Since I have already concluded that Ms. Bahlawan did not necessarily know that Mr. Al Enzi had any illegal drugs with him on November 22, 2016, I cannot conclude that she intended to further his possession of such drugs for the purpose of trafficking that day. The Crown has therefore not proved that she was a party to his offence.
Has the Crown proved the firearms charges against Ms. Bahlawan?
[165] The defence does not contest any of the elements of the firearms offences except for the element of possession. Therefore, to find Ms. Bahlawan guilty, I must be persuaded, beyond a reasonable doubt, that she knowingly kept the gun found on November 22, 2016 in her home, for her own use or benefit or that of Mr. Al Enzi.
[166] The Crown contends that, given the location of the gun and ammunition in Ms. Bahlawan’s bedroom, the only reasonable inference is that she knew it was there, and was storing it for Mr. Al Enzi’s future use.
[167] Defence counsel argued that the Crown had not proved beyond a reasonable doubt that Ms. Bahlawan knew about the gun, based on the lack of evidence about where exactly it was found and Mr. Al Enzi’s confession on November 22, 2016. Defence counsel contended that I should place no weight on Mr. Al Enzi’s retraction in his 2019 statutory declaration, because he was generally an unreliable witness and had been motivated to lie in order to get a plea deal.
[168] I find that the basement bedroom was occupied by Ms. Bahlawan, based on the photo strip hanging on the wall and the evidence of Det. Getz and Sgt. Hill with respect to the clothing, shoes and make-up in the room. There was another woman living in the house, Ms. Bahlawan’s mother. The photos are the critical piece of evidence here. In their absence, and without any evidence about the number and contents of other bedrooms in the house, I would not have been sure that the basement bedroom was occupied by Ms. Bahlawan. There is however no other plausible explanation for the photo strip on the wall featuring her and Mr. Al Enzi.
[169] This leaves the question of whether, as the person using the bedroom, Ms. Bahlawan must necessarily have known that there was a gun stored in a bin in one of the storage units in the room.
[170] There is no physical evidence establishing that Ms. Bahlawan ever handled the gun, the box of ammunition, or the bags that contained them. Neither her fingerprints nor her DNA was found on any of these items. The only latent evidence detected by the police were two fingerprints belonging to Mr. Sahir. There is nothing to indicate that Ms. Bahlawan ever met Mr. Sahir.
[171] There are significant gaps in the evidence about the search of Ms. Bahlawan’s bedroom. I think Sgt. Hill did his best to recall his involvement in the search of the Bahlawan home, using his notes to assist him with his recollection. He was frank about what he did and did not remember. Despite his best efforts and those of Det. Getz, however, we do not know:
• How many bins with clothing there were, in total, in the basement bedroom, or even how many there were in the vertical unit where the gun was found;
• The nature of the further storage and shelving to the right of the bedroom entrance, which Sgt. Hill mentioned but did not describe in any way;
• What method he used to search the bins, that is, whether he dumped the contents of each bin out or looked through them first;
• How many bins he searched before discovering the gun, and how many were left to search when he found it;
• What kind of clothing was in the other bins he searched, or whether they contained something other than clothing;
• Whether the other clothing found in other bins was women’s clothing;
• Whether the bin where the gun was found contained only socks, as Sgt. Hill’s testimony implied or, as Det. Getz recalled, it contained both socks and underwear;
• Aside from the bin where the gun was found, whether any other bins or drawers contained socks or underwear;
• Whether the bin where the gun was found was full or partly full; and
• Whether the bag with the gun was found near the top of the bin, or right at the bottom, or somewhere in between.
[172] Neither Sgt. Hill nor any of the other officers involved in the search of the Bahlawan home took any pictures or drew a sketch of the layout of the basement bedroom or the location of the gun when it was found. In cross-examination, Det. Getz agreed that making a diagram or taking a photograph is a good practice, especially when a firearm is discovered, and that these steps were not taken here. Det. Cox made a similar admission. Sgt. Smith, who assisted with the search of the Al Enzi home, took photos before and after his search, and stated that this was part of standard protocol as it was helpful in establishing where exactly a piece of evidence has been found. Det. Payment testified that “in the best scenario, you would take photographs or videos of everything you view” during a search. In November 2016, however, his unit only had two cameras. Det. Getz had one of them, but he said that it was not working on the day of the search.
[173] Questioned about their failure to take photos during the November 22, 2016 searches, Det. Payment and Det. Getz both mentioned being told by superior officers that they should not use their personal devices as cameras, presumably because they could be subpoenaed. Det. Cox testified that the OPS now issues cameras to all officers but did not do so in November 2016. Based on this evidence, which I accept as accurate, OPS officers did not routinely photograph premises that they were searching in November 2016. They were issued only a minimal number of cameras and were discouraged from taking photos with personal cellphones.
[174] Failing to document a search with photographs does not automatically result in inadequate evidence about the search. In this case, however, it would have assisted the Crown’s case significantly had officers, particularly Sgt. Hill and Det. Getz, made sketches or more detailed notes about where exactly the gun was found within the pink bin, and what else was found in that unit and other storage units in the room and in the basement in general.
[175] Given the gaps in the evidence about the search of the bedroom, I cannot be certain that Ms. Bahlawan, or anyone in the Bahlawan home, had a reason to look through the contents of the pink bin. The bin might have functioned as Ms. Bahlawan’s sock and underwear drawer, or she might have used another piece of furniture for this purpose. Ms. Bahlawan might have had a reason to go through it every day or every week, or it might have been used to store clothing that was no longer used or infrequently used. There is no way to tell.
[176] The gaps in the evidence about the search are enough, on their own, to give rise to reasonable doubt that Ms. Bahlawan was aware of the gun, if there is a basis to conclude that someone else may have put it there. This is where Mr. Al Enzi’s November 22, 2016 confession becomes significant.
[177] Crown counsel argues that, despite Mr. Al Enzi’s general lack of credibility, I should accept his evidence disavowing his November 22, 2016 confession about the gun. The defence says the opposite: although I must disbelieve everything else that Mr. Al Enzi said in his statutory declaration and his testimony, I should rely on his November 22 confession about the gun.
[178] Mr. Al Enzi was a deeply untrustworthy witness. I nonetheless conclude that I should disregard his confession about the gun.
[179] Mr. Al Enzi’s confession falls within the category of statements that have some inherent reliability. At p. 136 of The Law of Evidence, 7th ed., the authors set out various indicia of reliability of a confession. Mr. Al Enzi’s November 22 statement about the gun bears many of these hallmarks. He made the statement spontaneously, without prompting, against his own interest and with no motive to fabricate.
[180] I reject Mr. Al Enzi’s claim that he was unaware of the jeopardy he faced if he confessed. I find that he was cautioned with respect to the drug charges, and that Det. Cox had begun to caution him with respect to the firearms charges, when he confessed that the gun was his and that Ms. Bahlawan was unaware he put it in her room.
[181] I do not believe that Mr. Al Enzi was “out of it” as he claimed. Aside from the fact that Mr. Al Enzi lied about just about everything, his assertion that his judgment was compromised when he made the statement is inconsistent with other evidence that I do accept, including the account of officers who talked to him after the raid, and the lack of any observed behaviour, while he was under surveillance, consistent with any drug use on his part. In my view, his testimony that he was a heavy drug user at the time was not truthful, but rather a pretext for his purported inability to remember any details about his drug dealing.
[182] I also reject Mr. Al Enzi’s suggestion in his testimony that he knew nothing about the gun, but made a split-second decision to lie, confident that the police would never think that Ms. Bahlawan was the type of person who might have a firearm. It is inconceivable that a gun that Mr. Al Enzi knew nothing about coincidentally happened to be linked, through fingerprint evidence, to a friend of the family, a person who, on Mr. Al Enzi’s account, does not know Ms. Bahlawan.
[183] A reasonable doubt “ is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”: R. v. Villaroman, citing R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 36.
[184] The November 22, 2016 confession was a spontaneous declaration against self-interest. I find that this confession, coupled with the absence of any forensic evidence linking Ms. Bahlawan to the gun or its packaging, raises a reasonable doubt about whether she put the bag with the gun in the bin. The confession gives rise to reasonable doubt for two reasons.
[185] First, it is plausible that Mr. Al Enzi did, in fact, slip the gun into Ms. Bahlawan’s room without her knowledge. After initially denying that he had ever been in the house, he admitted, in cross-examination, that he had been inside the Bahlawan home many times. The fingerprints on the gun, which belonged to a friend of Mr. Al Enzi’s brother currently facing drug charges, strengthens the rational inference that the gun may have been found in Ms. Bahlawan’s bedroom because Mr. Al Enzi put it there.
[186] Second, I do not accept Mr. Al Enzi’s attempt to retract his confession in the statutory declaration he swore in 2019, in conjunction with his plea deal. During his testimony, he showed a complete disregard for his oath. I have no more reason to believe para. 13 of his sworn declaration than I have to believe any other self-interested statement he made during his examination.
[187] Crown counsel contends that, even if I accept that Mr. Al Enzi’s confession was true, it only proves that he believed that Ms. Bahlawan had no knowledge of the gun stored in her bedroom. Mr. Al Enzi testified that he did not go inside the Bahlawan home after their temporary break-up in 2015. If I accept that evidence, I would have to conclude that the gun was so cleverly concealed in the bin that it went unnoticed by Ms. Bahlawan for over a year. The Crown argues that this is implausible, and that she must have seen the gun sometime between the day it was placed in the bin and November 22, 2016. If I find that Ms. Bahlawan must have known about the gun, it does not matter whether Mr. Al Enzi believed that she did not know about it.
[188] This theory only holds water, however, if I accept Mr. Al Enzi’s evidence that he was last in the Bahlawan home in 2015. I do not. Over the course of his testimony, Mr. Al Enzi went from denying he had ever been inside the house to admitting he slept overnight there at least once and visited up to fifteen times. I cannot conclude that the gun was in Ms. Bahlawan’s room for so long that she inevitably must have discovered it.
[189] I conclude that the Crown has not proved that Ms. Bahlawan knew about the gun. Based on Mr. Al Enzi’s statement and the evidence, or lack thereof, about where exactly the gun was found, I am not convinced, beyond a reasonable doubt, that she knew the gun and the ammunition were in the storage bin. As a result, the Crown has not proved the firearms charges against her.
[190] Ms. Bahlawan, please stand.
[191] I find you not guilty of all charges. You are free to go.
Justice Sally Gomery
Released: December 21, 2020
COURT FILE NO.: 17-G1001
DATE: December 21, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAMARA BAHLAWAN
COUNSEL: Brigid Luke for the Crown
Mark Ertel for Ms. Bahlawan
verdict
Madame Justice S. Gomery
Released: December 21, 2020