Court File and Parties

COURT FILE NO.: CR-19-90000432-0000 DATE: 20210210

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen - and - Prince Adjei-Boateng

Counsel: Victoria Chan, for the Crown Greg Dorsz, for the Defendant

HEARD: January 18, 19, 20 and 21, 2021

Reasons for Judgment

DAVIES J.

A. Overview

[1] The Toronto Police received an anonymous tip that someone named Mike (later identified as Michael Patania) was selling drugs out of a café on Keele Street in Toronto. The police launched an undercover investigation and between March 23 and May 30, 2017, Detective Sukman bought heroin from Mr. Patania five times.

[2] On two occasions – May 16 and May 30, 2017 – Mr. Patania had to get heroin from his supplier to fulfill Det. Sukman’s order. Both times, Mr. Patania met with someone in the same Chevrolet Uplander in the parking lot of a Walmart near the café. The police were not able to identify the driver of the Uplander on May 16, 2017. On May 30, 2017, Prince Adjei-Boateng was driving the Uplander.

[3] Mr. Patania and Mr. Adjei-Boateng were both arrested on May 30, 2017. Mr. Adjei-Boateng had $1,300 of the police-issued buy money in his pocket when he was arrested. The police also found close to 200 gm of heroin concealed in a baby seat in the back of the Uplander.

[4] Mr. Adjei-Boateng is charged with trafficking heroin to Mr. Patania on May 16 and May 30, 2017. He is also charged with possessing heroin for the purpose of trafficking. This charge relates to the heroin found in the Uplander. Finally, Mr. Adjei-Boateng is charged with one count of possession of proceeds of crime in relation to the money found on him after his arrest.

[5] At the conclusion of the trial, the Crown invited me to enter an acquittal in relation to the May 16, 2017 trafficking charge. The Crown conceded it could not prove beyond a reasonable doubt that Mr. Adjei-Boateng was driving the Uplander that day.

[6] Mr. Adjei-Boateng testified in his own defence. While he admitted that he was driving the Uplander and met with Mr. Patania on May 30, 2017, he denied he gave or sold Mr. Patania drugs that day. Mr. Adjei-Boateng also admitted that Mr. Patania gave him $1,300 but he denied that he knew the money was for drugs; he testified that he was collecting the money as part of his used car parts business. Finally, Mr. Adjei-Boateng testified that he did not know there were drugs concealed in the baby seat.

[7] In light of the Crown’s position and Mr. Adjei-Boateng’s admissions, there are three issues for me to decide:

i. Did Mr. Adjei-Boateng give Mr. Patania drugs during their meeting on May 30, 2017? ii. Did Mr. Adjei-Boateng know the money he received from Mr. Patania on May 30, 2017 was related to a drug transaction? iii. Did Mr. Adjei-Boateng know there were drugs concealed in the baby seat in the back of the Uplander?

[8] If I accept Mr. Adjei-Boateng’s evidence on these issues or if his evidence leaves me with a reasonable doubt about his guilt, I must acquit him: see R. v. W.(D.), [1991] 1 S.C.R. 742. Even if I reject Mr. Adjei-Boateng’s exculpatory evidence, I cannot simply conclude that he is guilty. I must go on to evaluate the evidence I do believe and decide whether it satisfies me beyond a reasonable doubt that Mr. Adjei-Boateng is guilty.

[9] For the reasons that follow, notwithstanding the strong circumstantial case against Mr. Adjei-Boateng, I am left with a reasonable doubt by the totality of the evidence and the absence of evidence on one key issue and Mr. Adjei-Boateng is acquitted on all charges.

B. Preliminary Evidentiary Rulings

[10] Before turning to an assessment of whether the Crown has proven its case beyond a reasonable doubt, there are two evidentiary issues I must resolve. First, the Crown argues that statements made by Mr. Patania to Det. Sukman about his supplier are admissible against Mr. Adjei-Boateng under the co-conspirator’s exception to the hearsay rule. Second, Mr. Adjei-Boateng argues that his exculpatory statement to the police following his arrest is admissible as an exception to the rule against prior consistent statements.

i. Co-conspirator’s Exception to the Hearsay Rule

[11] During the course of this investigation, Mr. Patania made several comments to the undercover officer, Det. Sukman, about the person who supplied him with drugs.

[12] On April 16, 2017, Mr. Patania told Det. Sukman that he had known his supplier for years and the quality of the drugs he provided was good. Mr. Patania also told Det. Sukman that his dealer always had 2 to 3 kilograms of drugs on him.

[13] On May 16, 2017, Det. Sukman arranged to buy half an ounce of heroin from Mr. Patania. Mr. Patania did not have enough heroin to satisfy the order but said he could get it from his supplier. While they were waiting for Mr. Patania’s supplier, Mr. Patania told Det. Sukmna that said had known his supplier for 5 years. Mr. Patania also said that his supplier had fronted him a “9 pack” (or nine ounces) in the past. Mr. Patania told Det. Sukman that his supplier was so busy and would make him wait longer than before. Det. Sukman could see that Mr. Patania was communicating by text with his supplier. After receiving a text, Mr. Patania told Det. Sukman that his supplier was en route from Brampton.

[14] On May 29, 2017, Det. Sukman asked Mr. Patania for another half-ounce of heroin. Mr. Patania again said he would have to get it his supplier. Mr. Patania could not get in touch with his supplier that day. Mr. Patania and Det. Sukman met at the café on May 30, 2017. Mr. Patania made a call and asked the person on the other end if they could come to the area to meet him. When Mr. Patania got off the phone, he told Det. Sukman the person would meet them in 10 minutes. A few minutes later, Mr. Patania’s phone rang. Mr. Patania said to the caller, “Ok, we are coming to you. Are you there?” Mr. Patania then told Det. Sukman that they were meeting his supplier at the Walmart parking lot.

[15] The Crown seeks to adduce all the statements made by Mr. Patania about his supplier and Mr. Patania’s conduct on May 30, 2017 as evidence against Mr. Adjei-Boateng. Acts and statements of one co-conspirator can be admissible against other members of the conspiracy as an exception to the rule against hearsay if the following test is met:

i. The trier of fact is satisfied beyond a reasonable doubt that a conspiracy exists; ii. The trier of fact is satisfied on a balance of probabilities, based only on evidence directly admissible against the defendant, that the defendant is a member of the conspiracy; and iii. The acts or declarations the Crown seeks to adduce were made or done in furtherance of the conspiracy: see R. v. Mapara, 2005 SCC 23 at para. 8.

[16] There is overwhelming evidence of a conspiracy to traffic in heroin. Det. Sukman heard and saw Mr. Patania communicating with someone by telephone and by text message to arrange to buy drugs to satisfy his orders on May 16 and May 30, 2017. Mr. Patania met briefly with someone in the Uplander on May 16, 2017 and returned to the undercover officer’s car with drugs. Mr. Patania met with someone in the same Uplander on May 30, 2017 immediately after Det. Sukman gave him $1,400 for the heroin. I am satisfied beyond a reasonable doubt that there was a conspiracy involving Mr. Patania and his supplier and possibly others to traffic in heroin.

[17] The next question is whether there is independent evidence that establishes that Mr. Adjei-Boateng was probably a member of that conspiracy. In my view, there is. Mr. Adjei-Boateng acknowledged that the Uplander belonged to his girlfriend and that he used it often. The police saw Mr. Adjei-Boateng in the Uplander several times in the days leading up to May 30, 2017. On May 30, 2017, Mr. Adjei-Boateng was driving the Uplander. He met with Mr. Patania and received $1,300 from him. Mr. Patania got into the same Uplander on May 16, 2017. When the police searched the Uplander, they found almost 200 gm of heroin hidden in a baby seat. Taken together this evidence establishes that Mr. Adjei-Boateng was probably a member of the conspiracy with Mr. Patania to traffic in heroin.

[18] Having found that a conspiracy existed and Mr. Adjei-Boateng was a probable member, I must now consider which of Mr. Patania’s acts and statements were in furtherance of the conspiracy. To be in furtherance of the conspiracy, the statements must be made while the conspiracy is ongoing: R. v. Mapara, at para. 8. The statements must also further the unlawful object of the conspiracy: see R. v. Chang (2003), 173 C.C.C. (3d) 397 at para. 120. It is not enough that the statements or acts to be related to the conspiracy. The Court of Appeal provided the following distinction between statements in furtherance of a conspiracy and statements about a conspiracy in R. v. Chang at para. 121:

The rule does not permit the trier of fact to consider idle conversation, or narrative description of past events. Rather, the trier may only rely on acts or declarations that further the common interest, which are the very acts and declarations the parties themselves are likely to have relied upon in seeking to achieve the common goal.

[19] In my view, comments made by Mr. Patania to

[20] Det. Sukman describing his relationship with his dealer – including comments about the length of the relationship or that the supplier fronted him drugs in the past – were not made in furtherance of the conspiracy. Those statements were narrative descriptions of past events. Similarly, the statement made by Mr. Patania to Det. Sukman on May 16, 2017 that the supplier was en route from Brampton did not further the conspiracy. That was idle conversation while they were waiting for Mr. Patania’s supplier to arrive.

[21] The comments made by Mr. Patania on May 30, 2017 when arranging to meet his supplier at the Walmart parking lot, including his comment that the person he was speaking to would meet them in 10 minutes and his comment “ok, we are coming to you. Are you there?”, as well Mr. Patania’s actions in going to the agreed upon meeting place were in furtherance of the conspiracy. Those comments and acts are admissible against Mr. Adjei-Boateng.

ii. Mr. Adjei-Boateng’s statement to police

[22] Mr. Adjei-Boateng was arrested as soon as Mr. Patania got out of the Uplander on May 30, 2017. The arresting officer testified that he removed Mr. Adjei-Boateng from the Uplander, placed him on the ground and handcuffed him. He then conducted a pat down search of Mr. Adjei-Boateng and found $1,300 of the police-issued buy money in his pocket. The arresting officer explained to Mr. Adjei-Boateng that he was under arrest for trafficking and for being in possession of proceeds of crime. The officer testified that he explained to Mr. Adjei-Boateng that the cash in his pocket was believed to be proceeds of crime. At that point, Mr. Adjei-Boateng said “he was paying me for car parts.”

[23] Mr. Adjei-Boateng argues that his statement to the police about the money being for car parts is admissible as an exception to the rule against prior consistent statements. In R. v. Edgar, 2010 ONCA 529 at para. 72, the Court of Appeal held that a defendant’s spontaneous out-of-court statement made on arrest or when first confronted with an accusation can be admitted as an exception to the rule excluding prior consistent statements, if the defendant testifies.

[24] The Crown argues that Mr. Adjei-Boateng’s statement to the arresting officer is not admissible because it was not spontaneous. The Crown argued that Mr. Adjei-Boateng had an opportunity to think about what he would say before he made the statement about the money.

[25] The spontaneity of a defendant’s statement is what gives it probative value and justifies its admission because a spontaneous statement is more likely to be a true reflection of the individual’s honest reaction to the allegation: see R. v. Liard, 2015 ONCA 414 at para. 62. If the defendant has an opportunity to think through the allegations before making the statement, it may reduce or even eliminate the reliability and probative value of the statement. To decide whether a statement was sufficiently spontaneous to be admitted, the Court must consider all the circumstances, including the passage of time, any intervening events and the statement itself: see R. v. Liard, at para. 64.

[26] The Crown argued that Mr. Adjei-Boateng saw Mr. Patania being arrested when he got out of the Uplander and, therefore, would have known he was about to be arrested as well and would have had time to think about what he might say when he was arrested. The evidence does not support this submission. Mr. Adjei-Boateng testified that he did not see Mr. Patania get arrested. He testified that he was getting ready to pull out of the parking spot and when he looked up, he saw police around his vehicle, and someone opened the driver’s door to his vehicle. Mr. Adjei-Boateng’s evidence on this point is consistent with the testimony of several officers involved in the takedown. The arresting officer said that as soon as the takedown signal was given, he parked his car behind the Uplander to prevent Mr. Adjei-Boateng from leaving. The arresting officer also testified that he could not see what was happening with Mr. Patania from the driver’s side of the Uplander. Another officer testified that Mr. Patania was near Det. Sukman’s car when he was arrested. Det. Sukman testified that his car was parked four or five spots away from and in the row behind the Uplander. I accept Mr. Adjei-Boateng’s evidence that he did not see Mr. Patania getting arrested before the police blocked in his car and initiated his arrest. As a result, Mr. Adjei-Boateng would not have had an opportunity to think through how he was going to respond to the allegations before he made the statement to the officer.

[27] Mr. Adjei-Boateng’s arrest and the pat down search happened very quickly. Mr. Adjei-Boateng made the statement as soon as the officer explained to him why he was being arrested for being in possession of proceeds of crime. I am satisfied that Mr. Adjei-Boateng’s statement was spontaneous and is admissible. But it is not admissible for the truth of its contents. It is simply evidence of his reaction to the allegations, which may be relevant to his credibility and as circumstantial evidence that may bear on his guilt or innocence: see R. v. Edgar, 2010 ONCA 529 at para. 72.

C. Putting Mr. Adjei-Boateng’s Evidence in Context

[28] When assessing whether the Crown has proven its case beyond a reasonable doubt, I must consider the evidence as a whole. I must not analyze individual pieces of evidence in isolation. This rule applies to Mr. Adjei-Boateng’s evidence as well. When considering if I believe his evidence or if it leaves me with a reasonable doubt, I must consider it in the context of all the evidence at trial.

[29] The Crown case against Ms. Adjei-Boateng is entirely circumstantial. Therefore, I can only convict Mr. Adjei-Boateng if his guilt is only reasonable inferences available from the evidence. If the evidence supports a reasonable inference consistent with innocence, the Crown will not have satisfied its burden of proof.

[30] Inferences consistent with innocence can arise from the evidence or from a lack of evidence so long as they are grounded in logic and experience. Speculative alternative inferences will not give rise to a reasonable doubt: see R. v. Villaroman, 2016 SCC 33 at paras. 30-38. Again, I must assess the circumstantial evidence cumulatively, not the individual pieces of evidence that are just links in the inferential chain: see R. v. Lights, 2020 ONCA 128 at para. 37. Individual pieces of circumstantial evidence may, on their own, lack strong probative value. However, when considered as a whole, the circumstantial evidence may have a probative value greater than the sum of the individual parts: see R. v. Smith, 2016 ONCA 25 at paras. 81-82. While I refer to specific pieces of evidence and comment on them in my analysis below, I have kept in mind the overarching requirement to consider the cumulative effect of the evidence.

[31] The general chronology of the undercover investigation is not in dispute. Det. Sukman first met with Mr. Patania on March 23, 2017. In total, Det. Sukman bought drugs from Mr. Patania on five occasions: March 23, March 28, April 16, May 16 and May 30, 2017. At first, Det. Sukman bought only small quantities of heroin.

[32] On May 16, 2017, Det. Sukman asked Mr. Patania for half an ounce of heroin. Mr. Patania said he would have to get the heroin from his supplier. Eventually, Mr. Patania arranged to meet with his supplier in the parking lot of a Walmart on Keele Street. Det. Sukman followed Mr. Patania to the Walmart. Det. Sukman gave Mr. Patania $1,400 for the heroin. Mr. Patania then walked over to the Uplander and got in the front passenger seat. Mr. Patania got out of the Uplander a few minutes later carrying a green plastic bag. Mr. Patania got into Det. Sukman’s car and opened the green bag. Det. Sukman could see several clear plastic bags inside. Mr. Patania took out one of the clear plastic bags and gave it to Det. Sukman. Det. Sukman weighed the bag in front of Mr. Patania and confirmed that it was close to half an ounce. It is an admitted fact that the bag Mr. Patania gave to Det. Sukman on May 16, 2017 contained heroin.

[33] The Uplander drove out of the Walmart parking lot and was followed by several surveillance officers. The surveillance team lost sight of the Uplander a short time later without identifying the driver.

[34] After this meeting on May 16, 2017, the police investigation focused, at least in part, on identifying Ms. Patania’s supplier. The police conducted surveillance on the Uplander on May 25, May 29, and May 30, 2017, which culminated in the arrest of Mr. Adjei-Boateng.

i. Events of May 25, 2017

[35] When the police started surveillance on the morning of May 25, 2017, the Uplander was parked outside 30 Affleck Drive in Brampton. The surveillance officers saw Mr. Adjei-Boateng leave the house at approximately 9:15 a.m. and get into the Uplander. They followed Mr. Adjei-Boateng until 11:00 a.m. that day. Mr. Adjei-Boateng drove to a residence on Lockwood Road and picked up another individual. They drove to industrial building near Steeles Ave. and Highway 27. Eventually, Mr. Adjei-Boateng parked the Uplander in the parking lot in front of a commercial building on Finch Ave. West. Mr. Adjei-Boateng went into the building and the surveillance was discontinued.

[36] Mr. Adjei-Boateng testified about his activities on May 25, 2017. He testified that his girlfriend lived at 30 Affleck Drive at that time. He testified that he did not live with her but would stay with her for several days at a time. Mr. Adjei-Boateng acknowledged that he was driving the Uplander that day and identified himself in the surveillance photos. The Uplander belonged to Mr. Adjei-Boateng’s girlfriend but he testified that he used it when it was available. His girlfriend had another car that she used. Mr. Adjei-Boateng testified that other people also used the Uplander, including his girlfriend’s brothers, his family and a few of his friends.

[37] Mr. Adjei-Boateng testified in the spring of 2017, he was in business with Ben Bawuah selling salvaged cars and used car parts. They had customers in Canada as well as Ghana and Nigeria. Mr. Adjei-Boateng testified that they would buy salvage cars from auctions and resell them. They also sourced used car parts for their customers. The also shipped used car parts to their customers in Africa or arrange for someone travelling to Africa to deliver the parts.

[38] Mr. Adjei-Boateng testified that he was with Mr. Bawuah on May 25, 2017 when the police were conducting surveillance. He testified that he picked up Mr. Bawuah at his home on Lockwood Road. They went to an automotive mechanic shop near Steeles Ave. and Highway 27. Mr. Adjei-Boateng could not remember exactly why they went to the shop that day: it might have been to buy a part or to drop off a part to the mechanic or to check on repairs being done to one of their salvaged cars. Mr. Adjei-Boateng testified that after leaving the shop, he went to a meeting at the probation office on Finch Ave. West; Mr. Adjei-Boateng was serving a conditional sentence at that time.

ii. Events of May 29, 2017

[39] On May 29, 2017, Det. Sukman called Mr. Patania and asked for another half-ounce of heroin. The police were hoping that Mr. Patania would meet his supplier again that day and they could arrest both Mr. Patania and his supplier.

[40] Mr. Patania said he only 3 gm of heroin and would have to get the rest from his supplier. Det. Sukman and Mr. Patania spoke several times that evening. Eventually, Mr. Patania told Det. Sukman that his supplier was not answering his calls, so they arranged to meet the next day.

[41] Coincidentally, while Det. Sukman was trying to arrange to meet Mr. Patania, the surveillance team spotted the Uplander driving south on Keele Street. Mr. Adjei-Boateng was the passenger in the Uplander and a thinner built black man was driving.

[42] The surveillance officers followed the Uplander for close to two hours. The surveillance team saw the Uplander in the parking lot of an apartment building at 15 Harding Ave. Mr. Adjei-Boateng got out of the Uplander with a brown paper bag in his hand. He went into the apartment building and met briefly with someone in the lobby.

[43] The surveillance officers then followed the Uplander to several locations including a Western Union and an apartment building on Kipling Ave., where they pick up another unknown man. The surveillance officers then followed the Uplander to an area with light industrial buildings off Kipling Ave., where the man they just picked up on Kipling Ave. got out.

[44] Finally, the police then followed the Uplander to a Tim Hortons in Rexdale. The police saw Mr. Adjei-Boateng go into the Tim Hortons with a paper bag in his hand and return to the car carrying two cups. At 8:15 p.m., Mr. Adjei-Boateng walked over to the driver’s side of a Chrysler 300 that had pulled into the parking lot and handed something to the driver. I heard evidence that the police suspected that Mr. Adjei-Boateng gave the driver of the Chrysler 300 some drugs. Mr. Adjei-Boateng is not charged in relation to this suspected drug transaction and the Crown did not bring an application to adduce other discreditable conduct so I will not consider the evidence I heard about what the police believed this interaction was about.

[45] The police discontinued surveillance of the Uplander and Mr. Adjei-Boateng at approximately 8:20 p.m. shortly after he left the Tim Hortons’ parking lot.

[46] Mr. Adjei-Boateng testified that he was with Mr. Bawuah again on May 29, 2017. Mr. Bawuah was driving the Uplander that day. Mr. Adjei-Boateng testified that Mr. Bawuah usually drove the Uplander when they were together. He testified that they went to 15 Harding Street to return money to a customer who bought two salvaged cars from Mr. Bawuah but was unhappy with the extent of damage to the cars and the amount it would cost to fix them. Mr. Adjei-Boateng testified that he went into the apartment building and returned the money on Mr. Bawuah’s behalf. Mr. Adjei-Boateng testified that he told the customer how much money was in the package. The customer did not count the money in Mr. Adjei-Boateng’s presence but said he would check it later.

[47] Mr. Adjei-Boateng testified that he and Mr. Bawuah then went to see another customer who lived on Kipling. They gave that customer a ride to an auto mechanic where his car was being worked on and dropped him off. They then went to the Tim Hortons. Mr. Adjei-Boateng testified that he met briefly with an ex-girlfriend who asked him for some money. Mr. Adjei-Boateng testified that after leaving the Tim Hortons Mr. Bawuah dropped him off at his church, where he was completing some community service hours with the Pastor. Mr. Adjei-Boateng testified that he asked Mr. Bawuah to try to get in touch with their friend, Jarad Owosu, who owed Mr. Adjei-Boateng money for some car parts Mr. Adjei-Boateng had bought for him.

[48] Mr. Adjei-Boateng testified that the Pastor of his church drove him back to his girlfriend’s house in Brampton later that evening.

iii. Events of May 30, 2017

[49] On May 30, 2017, Det. Sukman arranged to meet Mr. Patania at the café at approximately 12:30 p.m. Det. Sukman told Mr. Patania he wanted to buy three fentanyl patches in addition to the half-ounce of heroin. Det. Sukman was issued $2,300 in “buy money” before their meeting.

[50] When Det. Sukman arrived at the café, Mr. Patania made a phone call and asked the person on the other line if he could come to the area. Det. Sukman understood that Mr. Patania was speaking to his supplier. Mr. Patania told Det. Sukman that the other person said he would be there in 10 minutes.

[51] While they were waiting to hear back from the supplier, Mr. Patania sold drugs to another person outside the café. When that transaction was completed, Mr. Patania’s phone rang. Mr. Patania said to the caller “Ok, we are coming to you. Are you there?” Mr. Patania and Det. Sukman then drove to the Walmart parking lot in Det. Sukman’s car.

[52] The Uplander was in parking lot when Det. Sukman and Mr. Patania arrived. Det. Sukman gave Mr. Patania $1,400 of the police-issued buy money for the heroin and $450 for the fentanyl patches. Mr. Patania walked over to the Uplander and got in the front passenger side. A couple of minutes later, Mr. Patania got out of the vehicle and was arrested as he walked back towards Det. Sukman’s car.

[53] The police also conducted surveillance on the Uplander throughout the morning of May 30, 2017. They first saw the Uplander parked outside 30 Affleck Drive in Brampton at approximately 8:00 a.m.. At approximately 10:30 a.m., Mr. Adjei-Boateng left 30 Affleck Drive, got into the Uplander and drove away. The police followed Mr. Adjie-Boateng to a Monday Exchange World and a cell phone store before he drove into the Walmart parking lot just after 1:00 p.m..

[54] Mr. Adjei-Boateng testified that on May 30, 2017 he was making arrangements to send car parts to a customer in Ghana. Someone who was flying to Ghana that afternoon had agreed to take a suitcase of car parts with him. Mr. Adjei-Boateng testified that he needed to get a bill of lading to include with the shipment. He went to Money Exchange World to get US dollars for the bill of lading. Mr. Adjei-Boateng testified that he needed $4,200 USD but only had $3,400 so he called Mr. Owosu, who owed him money for car parts. Mr. Adjei-Boateng testified that he asked Mr. Owosu for $1,500, which would cover the shortfall for the bill of lading and the extra baggage fee for the person travelling to Ghana.

[55] Mr. Adjei-Boateng testified that Mr. Owosu told him that if he went to the parking lot of the Walmart on Keele Street someone would meet him and give him the money Mr. Owosu owed him. Mr. Owosu did not tell Mr. Adjei-Boateng the name of the person he was going to meet or what sort of car that person was driving. Mr. Adjei-Boateng testified that he expected Mr. Owosu would tell the other person what car he was driving so they could find him.

[56] Mr. Adjei-Boateng testified that he called Mr. Owosu as he pulled into the parking lot to tell him he had arrived. He testified that he parked in the middle of the lot so the person could find him easily. A few minutes later, Mr. Patania opened his door and got into the car. Mr. Adjei-Boateng testified he did not know Mr. Patania and had never seen him before. Mr. Patania gave Mr. Adjei-Boateng money and asked if Mr. Adjei-Boateng had anything for him. Mr. Adjei-Boateng was still on the phone with Mr. Owosu. Mr. Adjei-Boateng told Mr. Owosu that Mr. Patania was asking for something. Mr. Owosu told Mr. Patania that he would be there in a few minutes to give him what he was asking for. Mr. Patania then got out of the Uplander and walked away. Mr. Adjei-Boateng testified that Mr. Patania was in his car for less than two or three minutes.

[57] Mr. Adjei-Boateng were arrested as soon as Mr. Patania got out of the Uplander.

[58] Mr. Patania was searched following his arrest. The police found a blue plastic bag containing 9.36 gm of heroin in the front pocket of his shorts. The police also found 14 fentanyl patches, a black flip phone and $550 of the police-issued buy money on Mr. Patania.

[59] The police also searched Mr. Adjei-Boateng after his arrest and found $1,300 of the police-issued buy money in his pocket.

[60] The police had a warrant to search the Uplander. They found several documents, including a cheque, a conditional sentence order and a probation order, in Mr. Adjei-Boateng’s name between the driver’s seat and front passenger seat. The parties agreed that these documents are admissible only for the purpose of connecting Mr. Adjei-Boateng to the Uplander. They are not admissible, for example, to prove that Mr. Adjei-Boateng might have been contravening his conditional sentence at various points during the police investigation. Evidence that Mr. Adjei-Boateng was breaching his conditional sentence would be bad character evidence that is presumptively inadmissible. The Crown did not bring an application to admit evidence of other discreditable conduct.

[61] The police also found a box of clear plastic sandwich bags, an envelope with US cash and three cell phones in the Uplander. Mr. Adjei-Boateng testified one of the phones belonged to him, one was not working, and one belonged to Mr. Owosu. The police did not obtain a warrant to search to extract data from any of the phone seized during the investigation.

[62] Finally, the police found five clear plastic bags of drugs in a paper bag that was concealed under the fabric cover of a baby seat in the back of the Uplander. There were two large-sized bags that contain 89.45 gm and 94.27 gm of heroin mixed with caffeine and narcotine. There were two medium-sized bags, one with 14.66 gm of heroin mixed with caffeine and chloroquine and one with 3.35 gm or cocaine. And there was one small bag that contained 0.41 gm of heroin mixed with caffeine. In total, the police found 198.79 gm of heroin in the Uplander.

[63] Mr. Adjei-Boateng testified that the baby seat in the back of the Uplander was not his and he did not know there were drugs hidden in it. He testified that he did not know the baby seat was in the Uplander on May 30, 2017 until the police searched the vehicle.

D. Assessing the credibility and reliability of Mr. Adjei-Boateng’s Evidence

[64] There are several factors that are relevant to my assessment of the credibility and reliability of Mr. Adjei-Boateng’s testimony.

i. Mr. Adjei-Boateng’s criminal record

[65] Mr. Adjei-Boateng has a criminal record including several crimes of dishonesty. In 2001, he was convicted of possessing and using a forged credit card as well as obstructing a police officer. In 2002, Mr. Adjei-Boateng was convicted of obstructing a police officer and failing to comply with probation. In 2006, Mr. Adjei-Boateng was convicted of obstructing a police officer and possession of counterfeit property. In 2007, Mr. Adjei-Boateng was convicted of attempted fraud, fraud and possession of forged credit cards. Finally, in 2016, Mr. Adjei-Boateng was convicted of possession of property obtained by crime and using a forged document.

[66] Mr. Adjei-Boateng’s criminal record is only relevant to my assessment of his credibility. It is not admissible to prove that Mr. Adjei-Boateng is the type of person who would commit a criminal offence. Nonetheless, the nature of Mr. Adjei-Boateng’s criminal record suggests that he may not be trustworthy. I have, therefore, approached his evidence with caution.

ii. Evidence that Supports and Contradicts Mr. Adjei-Boateng

[67] Assessing Mr. Adjei-Boateng’s credibility and reliability is not straightforward because there is evidence that both supports and contradicts his testimony in important ways. To the extent that Mr. Adjei-Boateng’s evidence is corroborated or supported by other independent evidence that will tend to enhance his credibility and reliability. On the other hand, if there is evidence that contradicts his testimony, that could significantly undermine his credibility and reliability.

[68] There are several facts that tend to support Mr. Adjei-Boateng’s evidence that he did not give Mr. Patania any drugs on May 30, 2017. Det. Sukman placed an order for a half ounce, or 14 gm, of heroin and gave Mr. Patania $1,400 before he met with Mr. Adjei-Boateng in the Uplander. Mr. Patania was arrested before he returned to Det. Sukman’s car. If Mr. Adjei-Boateng had given Mr. Patania drugs in exchange for the $1,400, one would expect the police to find at least 14 gm of heroin on Mr. Patania when he was arrested. However, Mr. Patania did not have 14 gm of heroin on him when he was arrested. He only had 9.3 gm of heroin in his pocket. An officer searched the area where Mr. Patania was arrested in case Mr. Patania had thrown the drugs away before his arrest and found nothing. There were enough drugs in the Uplander to fully satisfy Det. Sukman’s order. The fact that Mr. Patania did not have 14 gm of heroin on him when he was arrested tends to support Mr. Adjei-Boateng’s evidence that he did not give Mr. Patania any drugs on May 30, 2017.

[69] There is also evidence that Mr. Patania was in possession of drugs before he and Det. Sukman went to Walmart on May 30, 2017. Det. Sukman testified that just before they went to Walmart, Mr. Patania sold drugs to another person outside the café. Finally, the heroin found in Mr. Patania’s pocket was packaged in a different colour of plastic than the drugs in the Uplander. All the drugs in the Uplander were in clear plastic bags. The drugs found on Mr. Patania were in blue plastic. Taken together, all of this evidence tends to suggest that the 9.3 gm of heroin found on Mr. Patania was in his possession before he got into the Uplander and tends to support Mr. Adjei-Boateng’s testimony that he did not give Mr. Patania drugs that day.

[70] Mr. Adjei-Boateng’s evidence that he was involved in the used car business with Mr. Bawuah was corroborated by the observations of the surveillance officers and the search of the Uplander. On both May 25, 2017 and May 29, 2017, Mr. Adjei-Boateng was seen with Mr. Bawuah outside two different auto shops. When the Uplander was searched, the police found a used fender and struts. One of the officers agreed that the Uplander was “littered with car parts” when they searched it. The police also found an envelope containing US cash, which is consistent with Mr. Adjei-Boateng’s evidence that he went to Money Exchange World on the morning of May 30, 2017 to get money to pay a broker for a shipment of car parts to Ghana.

[71] Mr. Adjei-Boateng’s spontaneous reaction to being accused of being in possession of proceeds of crime also supports the credibility of his testimony that he was in the used car business and the money from Mr. Patania was for used car parts.

[72] On the other hand, there is evidence that contradicts Mr. Adjei-Boateng’s evidence.

[73] For example, Mr. Adjei-Boateng testified that he went into the Walmart parking lot twice on May 30, 2017. He testified that he went to the Walmart before we went to the cell phone store. Mr. Adjei-Boateng testified that he left the parking lot after Mr. Owosu told him he still needed to arrange the meeting. The surveillance officers testified that, collectively, they watched Mr. Adjei-Boateng continuously throughout the morning and did not see him in the Walmart parking lot before going to the cell phone store. Mr. Adjei-Boateng also testified that the police had their guns drawn when he was arrested. There were at least two officers involved in Mr. Adjei-Boateng’s arrest and several other officers in the vicinity. Only one of the officers who arrested Mr. Adjei-Boateng was asked if he had his firearm drawn when he approached the Uplander and he said no. In my view, little turns on these two inconsistencies in the evidence.

[74] The evidence about where the baby seat was in the Uplander when Mr. Adjei-Boateng was arrested is unclear and potentially inconsistent. Mr. Adjei-Boateng testified that he did not notice the baby seat when he got into the Uplander on May 30, 2017. However, he testified that he saw the baby seat in the third row of the Uplander when the police started their search.

[75] The officer who searched the baby seat testified that it was unattached in the middle of the second row when he found it. The officer testified the second row was a bench-style seat and there was nothing else significant on the bench when he removed the baby seat. The photographs taken of the Uplander show that there are two individual seats behind the driver with space between them, not a bench. The officer was, therefore, wrong when he said the baby seat was in the middle of the bench. In cross-examination, the officer agreed that he did not know where the baby seat was before Mr. Adjei-Boateng was arrested. He also agreed that there were other officers searching the car and those officers were moving things in the car. Given the officer’s admission that he does not know where the baby seat was before the arrest, I take nothing from the potential inconsistency in the evidence on this point.

[76] The most significant pieces of evidence that contradict Mr. Adjei-Boateng are the acts and statements made by Mr. Patania in furtherance of the conspiracy. Mr. Patania never identified his supplier to Det. Sukman or provided a description of his supplier. Nonetheless, he spoke to someone on the phone twice on May 30, 2017. After the first call, Mr. Patania reported to Det. Sukman that the person he was speaking to would meet them in 10 minutes. A few minutes later, Mr. Patania’s phone rang and he asked the caller “are you there?” Mr. Patania also said “ok, we are coming to you.” A few minutes later, Mr. Patania met with Mr. Adjei-Boateng. This is strong circumstantial evidence that Mr. Patania was speaking to Mr. Adjei-Boateng to arrange the meeting before, which contradicts Mr. Adjei-Boateng’s evidence that he had never seen or spoken to Mr. Patania before he got into the Uplander.

iii. Plausibility of Mr. Adjei-Boateng’s Evidence

[77] The inherent plausibility or implausibility of Mr. Adjei-Boateng’s evidence is relevant when assessing his credibility and reliability: see R. v. Williams, 2010 ONSC 184 at para. 58. The Crown argues that Mr. Adjie-Boateng’s evidence that he did not know there was the nearly 200 gm of heroin in the baby seat was inherently implausible. It was an admitted fact that the heroin found in the Uplander was worth between $23,834 and $43,733 depending on how it was sold. The Crown argued that nobody would leave something that valuable unattended in a car that is allegedly used by several people.

[78] In some cases, courts have drawn the common-sense inference that drug importers and drug traffickers do not leave large quantities of drugs unattended or with someone without their knowledge: see R. v. Ukwuaba, 2015 ONSC 2953 at para. 102, R. v. Pannu, 2015 ONCA 677 at para. 157. That argument is less persuasive here because whoever put the drugs in the Uplander left them unattended at least overnight. The police had the Uplander under surveillance starting at 8:00 a.m. on May 30, 2017. The police watched Mr. Adjei-Boateng as he got into the Uplander that morning. Mr. Adjei-Boateng did not put the baby seat into the Uplander on May 30, 2017. The surveillance officers also testified that, as a team, they had had the Uplander and Mr. Adjei-Boateng under constant surveillance until he was arrested. None of the surveillance officers saw Mr. Adjei-Boateng put anything into the back of the Uplander, which means the baby seat and the drugs were in the Uplander before Mr. Adjei-Boateng left Brampton that morning. This also means that the drugs were left unattended at least overnight, despite their value. And on Mr. Adjei-Boateng’s evidence, Mr. Bawuah was driving the Uplander on the evening of May 29, 2017 after he was dropped off at church to complete his community service hours. If the drugs were in the Uplander on May 29, 2017, they were in Mr. Bawuah’s possession while Mr. Adjei-Boateng was at church. While it may be a common sense inference in some cases that people do not leave valuable items unattended, the evidence in this case suggests that whomever the drugs belonged to did just that.

iv. Gaps in the Evidence

[79] Finally, there are gaps in the Crown’s case that are relevant to my assessment of Mr. Adjei-Boateng’s testimony and the strength of the evidence as a whole. Where the Crown’s case is based entirely or substantially on circumstantial evidence, the absence of evidence can give rise to a reasonable doubt: see R. v. Villaroman at para. 28, R. v. Hassanzada, 2016 ONCA 284 at para. 68. Of course, a gap in the evidence will vary in significance depending on the circumstances of the case: see Hassanzada at para. 71.

[80] Here, the defence adduced evidence that the police did not investigate several people and vehicles that appeared to be connected with Mr. Patania’s drug trafficking business. In my view, the failure on the part of the police to investigate everyone that interacted with Mr. Patania does not undermine the overall strength of the circumstantial evidence against Mr. Adjei-Boateng.

[81] What is significant is the police decision not to examine or extract data from the cell phones seized from the Uplander and from Mr. Patania. Det. Sukman testified that while Mr. Patania was making arrangements to meet his supplier on May 16, 2017, he could see that Mr. Patania was texting with someone identified as “XXX”. The police did not take any steps to identify that contact in Mr. Patania’s phone. The police did not look for text messages or phone calls between Mr. Patania and Mr. Adjei-Boateng on any of the devices seized. The police did not attempt to confirm whom Mr. Patania called or who called Mr. Patania on May 30, 2017 just before the meeting in the Walmart parking lot. As a result, there is no direct evidence that Mr. Adjei-Boateng and Mr. Patania spoke to each other or texted with each other on May 30, 2017 or any other time. There is also no evidence to contradict Mr. Adjei-Boateng’s evidence that he was speaking to Mr. Osowu throughout the morning of May 30, 2017 and at the time he met with Mr. Patania. The absence of evidence connecting Mr. Adjei-Boateng and Mr. Patania’s phones leaves open the possibility that Mr. Patania was speaking to Mr. Osowu and Mr. Adjei-Boateng was telling the truth when he said that Mr. Owosu sent him to meet with Mr. Patania.

v. Conclusion

[82] I return then to the basic principles that I must consider Mr. Adjei-Boateng’s evidence in light of the evidence as a whole and I must assess the cumulative weight of the circumstantial evidence. It is not enough for me to find that individual pieces of circumstantial evidence are consistent with innocence. I must determine whether I am left with a reasonable doubt based on reason, logic and common sense from the totality of the evidence and the absence of evidence.

[83] In light of Mr. Adjei-Boateng’s criminal record and the evidence that contradicts him, I cannot fully accept Mr. Adjei-Boateng’s exculpatory evidence. However, notwithstanding the suspicious circumstances in which Mr. Adjei-Boateng and Mr. Patania met on May 30, 2017 and the strong circumstantial case against him, I cannot fully reject his evidence either. Mr. Adjei-Boateng’s evidence was internally consistent. It fit with the surveillance evidence. It was supported by the circumstantial evidence that suggests that he did not give Mr. Patania any drugs when they met on May 30, 2017. And the absence of evidence from the seized cell phones leaves open the reasonable possibility that Mr. Adjei-Boateng was sent to meet Mr. Patania by Mr. Osowu as he testified. Mr. Adjei-Boateng’s testimony, when considered in the context of the evidence as a whole and the absence of evidence on one key issue, leaves me with a reasonable doubt about whether he gave drugs to Mr. Patanai on May 30, 2017, whether he knew the money Mr. Patania gave him was related to a drug deal and whether he knew about the other drugs in the Uplander. Mr. Adjei-Boateng is, therefore, entitled to an acquittal on all counts.

Davies J.

Released: February 10, 2021