COURT FILE NO.: CR-19-10000598-0000
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD DONISON, JABRIL FARAH, KHALID JAMA, HAKEEM MOHAMED and ADRIAN SCOTT
S. Scratch and G. Lennox, for the Crown
C. Brunet, for Mr. Donison
A. Monaco and M. Fisico, for Mr. Farah
J. Penman, for Mr. Jama
U. Kancharla, for Mr. Mohamed
J. Halberstadt, for Mr. Scott
HEARD: October 26-30; November 2-6, 9, 10, 12, 13, 16, 18-20, 26, 27, 30; December 1-4, 16-18, 20-22, 2020; January 4, 2021.
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Paragraph #
I. OVERVIEW............................................................................................................................... 4
II. GENERAL LEGAL PRINCIPLES
A. The Presumption of Innocence and the Burden of Proof................................................. 14
B. Circumstantial Evidence................................................................................................... 15
III. TRAFFICKING OFFENCES (COUNTS 29-43)
A. Overview.......................................................................................................................... 19
B. Heroin Trafficking
(i) The Issue and the Evidence of Det. Margetson........................................................... 23
(ii) Counts Involving Mr. Donison
(a) Relevant Intercepted Calls................................................................................... 30
(b) Analysis............................................................................................................... 36
(iii) Counts Involving Mr. Farah
(a) Relevant Intercepted Calls................................................................................... 41
(b) Analysis............................................................................................................... 47
(iv) Counts Involving Mr. Mohamed
(a) Relevant Intercepted Calls................................................................................... 49
(b) Analysis............................................................................................................... 54
(v) Counts Involving Mr. Scott
(a) Relevant Intercepted Calls................................................................................... 56
(b) Analysis............................................................................................................... 51
C. Cocaine Trafficking by Mr. Scott
(i) Relevant Intercepted Calls........................................................................................... 67
(ii) Analysis………………………………………………………………………………74
IV. THE GUN IN THE FIRE HOSE CABINET (COUNTS 16-19)
A. Overview
B. Evidence
(i) The Finding of the Gun................................................................................................ 80
(ii) Evidence Linking Mr. Donison to the Building......................................................... 83
(iii) Intercepted Calls After the Seizure of the Gun......................................................... 86
C. Analysis............................................................................................................................ 88
V. THE MAY 3, 2018 SEARCH OF THE ALLEGED STASH HOUSE (COUNTS 21-28)
A. Overview.......................................................................................................................... 94
B. The Charges
(i) Firearm Charges........................................................................................................... 96
(ii) Controlled Substance Charges.................................................................................... 98
C. Evidence
(i) “Upti’s” ........................................................................................................................ 99
(ii) The Events of May 3, 2018 Leading Up to the Search
(a) Relevant Intercepted Calls................................................................................. 102
(b) Police Testimony............................................................................................... 106
(iii) Intercepted Calls Following the Search................................................................... 111
D. Analysis
(i) Relevant Legal Principles.......................................................................................... 117
(ii) “Coded Language” ................................................................................................... 122
(iii) The Charges Against Mr. Donison
(a) Firearm Charges................................................................................................. 132
(b) Controlled Substance Charges........................................................................... 138
(iv) Mr. Farah
(a) Firearms Charges............................................................................................... 140
(b) Controlled Substances Charges......................................................................... 142
(v) Mr. Mohamed
(a) The Firearms Charges........................................................................................ 144
(b) Controlled Substance Charges........................................................................... 149
VI. THE MARCH 24, 2018 SHOOTING (COUNTS 5-9)
A. Overview........................................................................................................................ 150
B. The Charges.................................................................................................................... 152
C. Evidence
(i) The Discovery of the Shell Casings........................................................................... 153
(ii) Movements of Two Men Alleged to be Mr. Farah and Mr. Jama Before the Shooting......................................................................................................... 154
(iii) The Shooting........................................................................................................... 159
(iv) The Movements of the Two Men at Bellevue Crescent Following the Shooting... 165
(v) Relevant Intercepted Calls........................................................................................ 167
(vi) Expert Evidence
(a) The Expert Witness............................................................................................ 171
(b) Comparison of Casings...................................................................................... 172
(c) Comparison of the Casings Seized From the Parking Lot and Those From Test Firing of the STI Trojan................................................................................................................ 176
(d) The Expert’s Methodology................................................................................ 178
(e) Error Rates......................................................................................................... 182
D. Analysis
(i) Overview.................................................................................................................... 183
(ii) The Co-Conspirator’s Exception to the Hearsay Rule............................................. 185
(iii) Expert Evidence....................................................................................................... 188
(iv) Identity..................................................................................................................... 197
(v) Mr. Farah
(a) Attempted Murder With Restricted Firearm (Count 5) .................................... 204
(b) Discharge Restricted Firearm (Count 6) ........................................................... 210
(c) Point Firearm (Count 7) .................................................................................... 215
(d) Possess Loaded Restricted Firearm (Count 8) and Possess Restricted Firearm While Knowingly Unlicensed (Count 9) ....................................................................................... 217
(vi) Mr. Jama
(a) Attempted Murder With Restricted Firearm (Count 5) .................................... 220
(b) Discharge Restricted Firearm (Count 6) ........................................................... 221
(c) Point Firearm (Count 7) .................................................................................... 225
VII. TRANSFER OF AMMUNITION (COUNT 20)
A. Evidence
(i) Intercepted Calls........................................................................................................ 226
(ii) Evidence of D.C. Smith............................................................................................ 232
B. Analysis.......................................................................................................................... 233
VIII. THE APRIL 30, 2018 SHOOTING (COUNTS 11-14)
A. Overview........................................................................................................................ 239
B. The Charges.................................................................................................................... 241
C. Evidence
(i) Eyewitnesses
(a) Natalie Ricci...................................................................................................... 243
(b) Michael Hanna................................................................................................... 246
(ii) Expert Evidence........................................................................................................ 249
(iii) Video Evidence
(a) The Intersection of Lawrence Avenue West and Weston Road........................ 250
(b) Video Purporting to Show Mr. Farah’s Movements......................................... 252
(iv) Intercepted Communications
(a) Calls Made Around the Time of the Shooting................................................... 260
(b) Mr. Farah’s Calls After the Shooting................................................................ 263
(c) Calls Made by Others After the Shooting.......................................................... 268
D. Analysis
(i) Overview..................................................................................................................... 270
(ii) The Co-Conspirator’s Exception to the Hearsay Rule............................................. 272
(iii) Expert Evidence....................................................................................................... 273
(iv) The Agreed Statement of Fact
(a) How the Issue Arose.......................................................................................... 274
(b) Relevant Legal Principles.................................................................................. 279
(c) The Admission in This Case.............................................................................. 285
(v) Assessing Evidence of Identity
(a) Timing................................................................................................................ 293
(b) Descriptions of the Eyewitnesses...................................................................... 299
(c) Intercepted Calls................................................................................................ 304
(vi) Conclusion on Identity............................................................................................. 306
IX. ACCESSORY TO DISCHARGE OF A FIREARM (COUNT 15)
X. CRIMINAL ORGANIZATION OFFENCES (COUNTS 1 TO 4 AND 10)
A. Overview........................................................................................................................ 313
B. The Charges.................................................................................................................... 316
C. Applicable Law............................................................................................................... 321
D. Evidence
(i) Overview.................................................................................................................... 325
(ii) Territory.................................................................................................................... 326
(iii) Use of Violence........................................................................................................ 327
(iv) Concerns About Law Enforcement......................................................................... 332
(v) “Upti’s” ..................................................................................................................... 333
(vi) Calls With Individuals in Custody........................................................................... 334
(vii) The “Rules of the Game” ....................................................................................... 337
E. Analysis.......................................................................................................................... 340
XI. DISPOSITION
A. Richard Donison............................................................................................................. 350
B. Jabril Farah..................................................................................................................... 352
C. Khalid Jama.................................................................................................................... 354
D. Hakeem Mohamed......................................................................................................... 356
E. Adrian Scott.................................................................................................................... 358
1Richard Donison, Jabril Farah, Khalid Jama, Hakeem Mohamed and Adrian Scott are charged on a 43-count Indictment with a variety of drug, firearm, criminal organization and other offences, contrary to the Criminal Code and the Controlled Drugs and Substances Act (“CDSA”). The charges in this case arose out of a lengthy police investigation known as “Project Patton.” The Crown alleges that the five defendants, all racialized young men living in the Weston Road and Lawrence Avenue West area of Toronto, were part of a criminal organization and acted in concert to traffic in a number of controlled substances. The Crown also alleges that they used firearms to protect their business and that on two occasions, Mr. Farah discharged a firearm at unknown persons. It is alleged that on one of those occasions, he did so in an attempt to murder someone.
2The defendants have elected to be tried by a judge without a jury. Their trial took place by videoconference over the course of approximately seven weeks during which the court heard the evidence of over 30 witnesses and over 680 intercepted telephone calls.
3A description of the charges in the Indictment can be found in Appendix A. Following are my reasons for the verdicts with respect to each count and each defendant.
I. OVERVIEW
4As noted earlier, there are 43 counts in the Indictment.1 Some of the counts relate to only one defendant while others charge two, three or four of them. There is no count in which all five defendants are jointly charged.
5Counts 29 to 43 allege ongoing drug trafficking activity by Mr. Donison, Mr. Farah, Mr. Mohamed and Mr. Scott, although the Crown is not seeking convictions on Counts 29 and 37. Except for Mr. Scott, all of the defendants charged do not contest that they were involved in drug trafficking, although they contest the nature of the substance being trafficked with respect to some of the counts. Mr. Scott contests all of the trafficking charges he is facing. Mr. Jama is not charged with any trafficking offences.
6Mr. Donison is charged in Counts 16 to 19 with firearm possession offences in relation to a handgun that was found on April 16, 2018 in a firehose cabinet in the hallway of an apartment building where he was alleged to reside.
7All of the defendants except for Mr. Jama and Mr. Scott face several charges in Counts 21 to 28 arising out of the execution of a search warrant on May 3, 2018. The warrant was executed at an apartment unit alleged to be a “stash house” used by the defendants and a firearm and various controlled substances were seized.
8Counts 5 to 15 relate to two specific events that took place on March 24, 2018 and April 30, 2018, both of which involved the discharge of a firearm. Mr. Farah and Mr. Jama are alleged to have been jointly involved on March 24 but only Mr. Farah is charged in relation to the events of April 30, 2018. No victim has been identified in relation to either event.
9Mr. Donison and Mr. Mohamed are charged in Count 15 with being accessories to the April 30, 2018 firearm offences. It is alleged that they attempted to assist Mr. Farah in retrieving a cell phone he had left near the scene of the shooting.
10Mr. Scott is charged alone in Count 20 with transferring ammunition between March 25 and March 30, 2018, it being alleged that he supplied ammunition to replace that which had been used in the March 24, 2018 shooting.
11All of the defendants are alleged to have committed various offences for the benefit of, at the direction of or in association with a criminal organization in Counts 1 to 4 and 10. The criminal organization in question allegedly consists of the defendants and others and was created for the purpose of trafficking in controlled substances. The defendants are not alleged to be part of any particular named street gang.
12The Crown’s case relies to a large extent on numerous telephone communications that were intercepted pursuant to an authorization.2 The defendants have conceded that voice identification has been established in the majority of these interceptions and that they participated in the calls ascribed to them.
13In these reasons, I will begin by considering the trafficking charges against all of the defendants, followed by the charges arising from the seizure of the gun on April 16, 2018 and the seizure of the gun and drugs on May 3, 2018. I will then consider the charges arising from the March 24, 2018 shooting followed by the related transferring ammunition charge. After that, I will consider the charges arising from the April 30, 2018 shooting followed by the accessory charges. Finally, I will consider the criminal organization charges depending on which, if any of the underlying charges resulted in convictions.
II. GENERAL LEGAL PRINCIPLES
A. The Presumption of Innocence and the Burden of Proof
14Each of the defendants is presumed to be innocent. Each may only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown. There is no onus on any defendant to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities. In applying the burden of proof, I must consider each count and each defendant separately.
B. Circumstantial Evidence
15The Crown’s case with respect to most of the counts is circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):
... [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.
16Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts (at paras. 35-37):
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
17It is important to keep in mind that the issue is whether guilt is the only reasonable inference, not the strongest reasonable inference to be drawn from the circumstantial evidence. An accused is entitled to an acquittal if there are reasonable inferences other than guilt, even if such alternative inferences are not as strong or compelling as an inference of guilt. Put another way, a reasonable inference other than guilt is, by definition, a reasonable doubt.
18In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn,” “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4.
III. TRAFFICKING OFFENCES (COUNTS 29-43)
A. Overview
19This section relates to Counts 29 to 43, which allege conspiracies to traffic and trafficking in a variety of controlled substances, including cocaine, oxycodone and heroin.3 As noted earlier, the Crown is not seeking convictions on Count 29 (which charges Mr. Donison, Mr. Farah and Mr. Mohamed with conspiracy to traffic heroin) and Count 37 (which charges Mr. Scott with trafficking cocaine). As a result, acquittals are entered on those counts.
20All of the defendants except for Mr. Jama are alleged to have engaged in drug trafficking on an ongoing basis. With the exception of Mr. Scott, the defendants do not contest that they trafficked in the various substances described in the indictment with the exception of heroin. Mr. Scott contests all of the trafficking charges he is facing.
21Given the concessions, with respect to Mr. Donison, Mr. Farah and Mr. Mohamed, I will not summarize the evidence supporting the drug trafficking charges for substances other than heroin except to note that the intercepted communications clearly demonstrate that the defendants were engaged in the sale of controlled substances on an ongoing basis.
22On the basis of the concessions, guilty verdicts are entered on Count 30 (conspiracy to traffic cocaine by Mr. Donison, Mr. Farah and Mr. Mohamed), Count 31 (conspiracy to traffic oxycodone by Mr. Donison and Mr. Farah), Count 33 (trafficking cocaine by Mr. Donison), Count 34 (trafficking oxycodone by Mr. Donison), Count 36 (trafficking cocaine by Mr. Mohamed), Count 39 (trafficking cocaine by Mr. Donison and Mr. Farah), Count 41 (trafficking cocaine by Mr. Donison and Mr. Mohamed) and Count 43 (in relation to Mr. Donison, but at this point in these reasons not in relation to Mr. Scott, who is also charged).
B. Heroin Trafficking
(i) The Issue and the Evidence of Det. Margetson
23The heroin trafficking charges are in Count 32 (Mr. Donison), Count 35 (Mr. Mohamed), Count 38 (Mr. Donison and Mr. Scott), Count 40 (Mr. Donison and Mr. Mohamed) and Count 42 (Mr. Donison and Mr. Scott). While these defendants acknowledge that they trafficked in controlled substances, they take the position that the Crown has failed to prove that heroin was among those substances.
24The word “heroin” is not used on any of the intercepted calls. However, there are frequent references to other terms which the Crown alleges are slang for heroin, including “sizz,” “dizz,” “dizzy,” “down” and “hard.” In this regard, the Crown relies on the testimony of Det. John Margetson of the Toronto Police Service, who was qualified on consent to give opinion evidence respecting the characteristics of street level drug trafficking in Toronto and the surrounding areas, including packaging, pricing and the use of slang or “coded language” to refer to various controlled substances. Det. Margetson has significant experience investigating trafficking offences and has been qualified to give opinion evidence in these areas on numerous occasions.
25Det. Margetson’s evidence respecting slang terms was based on his experience in investigating trafficking offences, including several projects involving intercepted communications. He created a lexicon of commonly used slang terms in the Project Patton investigation. Det. Margetson acknowledged that slang terms constantly evolve. Certain terms are used at different times and the meaning of slang terms may change over time.
26According to Det. Margetson’s lexicon, the terms “dizzy” and “down” are used to refer to heroin. He testified that heroin is usually sold at the street level in increments of 0.1 grams, which is sometimes referred to by users and traffickers as a “point.” In 2018, a point would sell for about $20.
27The defendants’ position on the heroin counts is based on Det. Margetson’s evidence respecting fentanyl. He testified that by 2019, fentanyl had largely replaced heroin on the illegal opiate market. This transition began earlier, and in 2018 fentanyl was sold mixed with heroin as well as on its own, which Det. Margetson referred to as a “dual market.” According to Det. Margetson, the same slang terms were used to refer to both heroin and fentanyl, although for the term “dizzy,” it was his opinion that “the stronger inference” was that it refers to heroin. Both substances would be sold in similar increments. Heroin combined with fentanyl would sell for the same price as heroin on its own but pure fentanyl could command a higher price, such as $30 or $40 per point.
28The defendants submit that because the same slang terms were used to describe fentanyl and heroin and because they were sold in similar amounts, the Crown cannot prove that any of the transactions in the intercepted communications involved heroin rather than fentanyl. As the counts in the indictment particularize heroin, that is what the Crown must prove was trafficked and a failure to do so precludes a conviction on those counts.
29The defendants are correct that where the Crown chooses to particularize a charge in an indictment, it must prove the charge as particularized: R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C.R. 1020, at p. 1023. However, as the Crown points out, prosecutions for offences relating to specific controlled substances are governed by s. 2(2)(a) of the CDSA, which provides that “a reference to a controlled substance includes a reference to any substance that contains a controlled substance.” This means that in relation to the counts at issue, the Crown need only prove that the defendants trafficked in substances that contained at least some heroin. Thus, if the Crown can prove that the defendants trafficked in heroin or a mixture of heroin and fentanyl, it is entitled to a conviction. But if the Crown is unable to prove that what was trafficked was not pure fentanyl, then it is not.
(ii) Counts Involving Mr. Donison
(a) Relevant Intercepted Calls
30As noted earlier, there are numerous calls involving the sale of “dizz,” “dizzy” or “down” with the amount specified in terms of points (e.g. “I need two down”) or in terms of the amount that the buyer is willing to pay (e.g., "20 down").4 There are also several calls in which “half a B” of “dizz” is discussed. A “B” is defined by Det. Margetson as “1/8th of an ounce or 3.5 grams of drugs.” Given Det. Margetson’s evidence that the terms used for heroin and fentanyl were interchangeable and that the substances were sold in similar amounts, these terms by themselves do not assist in distinguishing fentanyl from heroin or heroin mixed with fentanyl. There are, however, some intercepted calls where there is additional context that may shed light on the meaning of the terms.
31On March 23, 2018, Mr. Donison spoke to an unidentified woman who asked him for "50 down."5 Mr. Donison confirmed that she had “50” in her hands and then asked whether she wanted “two and a half.” She replied that she did, but complained that “the last one was … a half a point shy.” Mr. Donison offered to compensate her by giving her three points. They agreed to meet in 20 minutes.
32The Crown relies on another call on March 30, 2018 in which Mr. Donison agreed to sell “a chick of dizz” to another individual, Guleid Hussein (also known as "Gully").6 The term “dizz” is likely a short form of “dizzy.” As noted earlier, it was Det. Margetson’s opinion that this term can refer to either heroin or fentanyl, although it is more likely to be the former. While the term “chick” is not in Det. Margetson’s lexicon, it is likely a short form for “chicken,” which the lexicon defines as a “kilogram of powder cocaine or 3.5 grams of crack cocaine.” In these circumstances, it is not clear what substance “a chick of dizz” refers to. On March 31, 2018, Mr. Donison conducted another transaction with Mr. Hussein, this time for "half a B of dizz."7
33On April 19, 2018, Mr. Donison conducted a transaction with an unidentified woman who wanted to buy "A 50 of hard and a point and half of down."8 According to the lexicon, “hard” is a reference to crack cocaine and 50 refers to the price, which means that the woman wanted to buy $50 of crack cocaine as well as a “point and a half of down.” Mr. Donison agreed to sell this to her for $80, which means that the “point and a half” cost $30. This is consistent with Det. Margetson’s evidence that heroin or heroin mixed with fentanyl was sold for $20 per point.
34In a call on April 21, 2018, Mr. Donison and Mr. Hussein discussed drug trafficking they had been engaged in and Mr. Hussein stated that he no longer “touched dizzy.” Mr. Donison reminded Mr. Hussein that he had said that he needed something for the following day, to which Mr. Hussein replied “No. I was talking about a soft down not a dizzy” and later stated that he needed "a half bounce of sizzy."9 According to the lexicon, both “soft” and “sizzy” mean powder cocaine. It is not clear what a “soft down” is, but it may suggest that the term “down” is not used exclusively to refer to heroin.
35In a call on May 15, 2018, Mr. Hussein told Mr. Donison that an unidentified woman wanted to get some “dizzy” from Mr. Donison and wanted to know how much a “half bounce” (half an ounce, according to Det. Margetson) would cost.10. Mr. Donison replied that it costs “14” but that he would agree to let her have it for “13.” In another call a few minutes later, Mr. Hussein asked Mr. Donison “Is it the purple … or the brownie?” Mr. Donison replied that it was the "brownie."11 The following day, Mr. Donison and Mr. Hussein discussed a woman who apparently supplied them with drugs. According to Mr. Hussein, this woman asked another woman if she had “the purple” and the other woman replied that she did not.12
(b) Analysis
36A review of all the calls involving Mr. Donison make it clear that he sold several types of controlled substances on an ongoing basis, including substances he and others referred to as “dizzy” and “down.” As defence counsel correctly points out, Det. Margetson testified that in 2018, these terms were used to refer to fentanyl as well as heroin. The issue that must be determined here is whether the Crown has proven beyond a reasonable that at least some of the substances sold by Mr. Donison between March 7 and June 20, 2018 contained heroin.
37The May 15, 2018 conversation in which Mr. Donison and Mr. Hussein discussed the sale of half an ounce of “dizzy” to an unidentified woman is significant on this issue. Mr. Donison told Mr. Hussein that it would cost “14” but that he would agree to let her have it for “13.” Mr. Hussein then asked Mr. Donison if the substance he is agreeing to sell is “the purple” or “the brownie” and Mr. Donison replies that it is the latter. According to Det. Margetson, “brown” is a reference to heroin (although in some contexts it could mean MDMA) and “purple heroin” is a mixture of heroin and fentanyl that is purple in colour. There is no evidence that Mr. Donison sold MDMA. It is clear in this conversation that Mr. Donison is distinguishing heroin from a heroin and fentanyl mixture and that it is the former that is being sold to the unidentified woman.
38I do note that the price being discussed in this conversation is somewhat less that what Det. Margetson testified a half ounce would cost. According to him, in 2018 an ounce of heroin sold for $3500 to $5000, depending on the quality, so a half-ounce would presumably cost at least $1750 to $2500. Mr. Donison appeared to be willing to sell a half-ounce of “dizzy” for $1300. However, I do not take Det. Margetson’s evidence in this regard as establishing set prices from which individuals could not deviate.
39Based on this evidence, I am satisfied beyond a reasonable doubt that Mr. Donison trafficked heroin on at least one occasion. Given Det. Margetson’s evidence about the heroin and fentanyl markets in 2018 and how the two substances were often mixed, it is very unlikely that Mr. Donison sold only pure fentanyl to his opiate customers throughout the three and a half month period covered by the indictment, so it is also likely that he sold substances that contained at least some heroin on numerous other occasions.
40For these reasons, Mr. Donison is found guilty on Count 32. For the reasons outlined below, I am not satisfied beyond a reasonable doubt that any specific transactions he participated in together with Mr. Farah, Mr. Mohamed or Mr. Scott involved heroin, so he is accordingly found not guilty on Counts 38, 40 and 42.
(iii) Counts Involving Mr. Farah
(a) Relevant Intercepted Calls
41Count 38 charges Mr. Farah with trafficking heroin jointly with Mr. Donison. Although the timeframe in the Indictment is March 7 to June 20, 2018, this count relates to specific transactions on March 23, 24, 25 and 31 in which Mr. Farah allegedly delivered heroin that Mr. Donison had agreed to sell to other individuals.
42In a call on March 23, 2018, an unknown woman asked Mr. Donison for a “forty” and also indicated that she could pay him $60 which she owed to him.13 Mr. Donison then called Mr. Farah and asked him to get the $100 from the woman, after which he called the woman to arrange a meeting between her and Mr. Farah.14 In a subsequent call to Mr. Farah, Mr. Donison told him to give her "two points of dizz."15
43Later on March 23, 2018, Mr. Donison had a conversation with Mr. Farah in which he agreed to get some “loud” (marijuana) for him. Mr. Farah said “Yo, make sure you leave some dizzy there, no?” Mr. Donison agreed to do so.16
44On March 24, 2018, Mr. Donison, Mr. Farah and a woman identified as Angie had a three-way conversation in which Angie asked for “a three down and a three up and a two down.” Mr. Farah said that he is going to get it ready.17
45On March 25, 2018, Mr. Donison, Mr. Farah and a man identified as Robbie had a three-way conversation in which Mr. Farah agreed to meet Robbie, who stated that he wanted “40 down.” A short while later, Mr. Farah called Mr. Donison to confirm that "he wants two points."18
46On March 31, 2018, Mr. Donison had a conversation with Angie, who wanted a “three down,” which Mr. Donison confirmed is “three points” for $30. Mr. Donison then called Mr. Farah and told him to take out “just over a point” of “down” for Angie.19
(b) Analysis
47It is clear from the intercepted calls that Mr. Farah engaged in trafficking a substance referred to as “down” and “dizz,” which was sold for $20 per point. As noted earlier, these terms and this price are consistent with Det. Margetson’s evidence respecting heroin. However, Det. Margetson also testified that the same terms could be used for fentanyl and although pure fentanyl could cost more than heroin or a heroin and fentanyl mixture, he did not say that pure fentanyl would necessarily cost more. As he explained, during this period the heroin market and the fentanyl market were intertwined.
48Based on this evidence, while it is very likely that Mr. Farah trafficked in heroin or a heroin and fentanyl mixture rather than pure fentanyl, in my view Det. Margetson’s evidence gives rise to a reasonable doubt with respect to this issue. Mr. Farah is accordingly entitled to an acquittal on Count 38.
(iv) Counts Involving Mr. Mohamed
(a) Relevant Intercepted Calls
49Mr. Mohamed is charged by himself in Count 35 with trafficking heroin and jointly with Mr. Donison in Count 40. The former relates to an alleged transaction on April 19, 2018 and the latter to an alleged transaction that occurred on May 28, 2018.
50On April 19, 2018, Mr. Mohamed had a telephone conversation with an unidentified male and agreed to sell him "40 of down…two points."20
51On May 28, 2018, Mr. Donison’s customer Angie called him and asked for “20 up and 20 down.” Mr. Donison then called Mr. Mohamed and told him that he will send Angie “to the building over there.” Mr. Mohamed asked what she wanted, to which Mr. Donison replied “I think four.” Mr. Mohamed said, "all right."21
52Mr. Donison contacted Angie and told her to meet him “at the towers.” He then contacted Mr. Mohamed and told him to go to “18” and that Angie was there. A minute later, he told Angie that “Alex” is coming. A few minutes after that, Mr. Donison had a conversation with an unidentified man and told him to go to the 18th floor of a certain address. The man called Mr. Donison once he arrived there, but said that he did not want to enter the building and that he needed “a 40.” Mr. Donison then called Mr. Mohamed and told him to “take out a four and go downstairs” because "Raymond" was there.22
53About 13 minutes later, Angie called Mr. Donison to complain that although she received “up,” she did not get any “down.” In another call a little while later, Mr. Donison told Angie that “he [Mr. Mohamed] has no down right now.” Mr. Donison also told another man a while later that "he has no down right now."23
(b) Analysis
54With respect to the April 19, 2018 call, my conclusion is the same as it was for Mr. Farah. Mr. Mohamed agreed to sell a substance referred to as “down” at a price of $20 per point. Given Det. Margetson’s evidence about the interchangeability of terminology, while I am of the view that this was likely a heroin transaction, I am not satisfied of this beyond a reasonable doubt. Mr. Mohamed is therefore found not guilty on Count 35.
55With respect to the May 28, 2018 transaction, as I read these intercepted calls, while Angie wanted “20 up and 20 down” from Mr. Donison and he arranged a meeting between Mr. Mohamed and a man presumably sent by Angie, Mr. Mohamed was told only that Angie wanted “I think four.” It appears that Angie ultimately did not receive any “down.” When she advised Mr. Donison of this, he told her that Mr. Mohamed did not have any “down.” Assuming that “down” meant heroin, it is clear that Mr. Mohamed did not have any and did not sell any. The only thing Mr. Mohamed agreed to sell was “four,” the meaning of which is unclear. In all the circumstances, I am not satisfied that Mr. Mohamed agreed to sell heroin to anybody. He is therefore found not guilty on Count 40.
(v) Counts Involving Mr. Scott
(a) Relevant Intercepted Calls
56Mr. Scott is charged in Count 42 with trafficking heroin jointly with Mr. Donison. This count relates to three alleged transactions that took place on March 29, May 28 and June 1, 2018.
57On March 29, 2018, Mr. Scott called Mr. Donison and asked if he had any “loud” (marijuana) on him. Mr. Donison replied that he “can’t be making all those stops.” The conversation then continued as follows:
SCOTT: …since you’re going to Newie [Newmarket], can’t you just leave it there?
DONISON: Leave what there? The dizz?
SCOTT: Uh, yeah.
DONISON: I don’t even have the dizz. I don’t even have that on me. I don’t have that much on me.
Mr. Scott asked Mr. Donison if he would “get the loud for me at least.” Mr. Donison replied that he would call a person he referred to as “Money” and get the “loud” when he came back because he did not have any “loud”. A person (presumably “Money”) was supposed to have some “loud” at 5:00 or 6:00.24
58At 5:58 p.m., Mr. Donison and Mr. Scott spoke again. Mr. Donison said that he was on his way back and “after I get the loud, I have to get dizz, so I’m gonna be like an hour …” Mr. Scott replied, "Make sure you get loud for me."25
59The Crown also relies on a call between Mr. Scott and Mr. Donison on May 28, 2018 in which Mr. Scott asked Mr. Donison to give a person called Christie a “point of … soft and a point of hard.” Mr. Donison agreed to do so.26
60In a call on June 1, 2018, Mr. Scott asked Mr. Donison if he was in Newmarket and Mr. Donison replied that he was about to be there. Mr. Scott then said, “There’s a bill whop for dizz, that Steph girl’s house.” Mr. Donison asked where the house was and Mr. Scott told him it was near the hospital. Mr. Donison then asked, “You can’t tell her to go to like Al’s building?” Mr. Scott said that he would “call him back” and Mr. Donison told him to “tell him to go …to her building right now.” In a call a short while later, Mr. Scott asked Mr. Donison if he was at the building. Mr. Donison said that he was and asked, “What does he want though?” Mr. Scott replied, “I don’t know. They want dizzy. They said they have a bill so I guess a five.” Mr. Donison asked Mr. Scott whether he knew the person they were speaking about and Mr. Scott replied, “Yeah, that Stephanie girl’s uncle.” Mr. Donison told Mr. Scott to tell the person to go to the fourth floor.27
(b) Analysis
61In the March 29, 2018 call, Mr. Scott asked Mr. Donison to leave some “dizz” and Mr. Donison replied that he does not have any but that he would procure some “loud” later that day. Assuming that “dizz” means heroin, this amounts to no more than an attempt by Mr. Scott to possess heroin, possibly for the purpose of trafficking. Possession for the purpose of trafficking and trafficking are distinct offences and the one does not include the other: R. v. Denbigh (1993), 1993 CanLII 1023 (BC CA), 78 C.C.C. (3d) 221 (B.C.C.A.), at para. 114. In any event, when Mr. Donison said later the same day that he was on his way to get “dizz,” Mr. Scott asked only for “loud.”
62I have some difficulty understanding the Crown’s theory with respect to the May 28, 2018 call. The transaction being discussed relates to a “point of soft” and a “point of hard.” According to Det. Margetson, the terms “soft” and “hard” refer to powder and crack cocaine. There is no evidence that either of these terms refer to heroin. The Crown has not proven that this was a heroin transaction.
63The June 1, 2018 calls relate to a transaction for “dizz” or “dizzy.” As noted earlier, Det. Margetson testified that these terms could be used for heroin or fentanyl, although it is clear that this transaction contemplates the substance in question being sold for $20 per point. As with the counts involving Mr. Farah and Mr. Mohamed, these transactions likely involved heroin, but I am not satisfied of this beyond a reasonable doubt.
64There is also another issue with respect to these calls. In the June 1, 2018 calls, Mr. Scott advised Mr. Donison that there is a person who wishes to buy some drugs. He did not personally do any of the acts that constitute trafficking as defined in s. 2(1) of the CDSA, that is, he does not “sell, administer, give, transfer, transport, send or deliver” any controlled substances, nor did he offer to do any of those things. As a result, if he is guilty of trafficking, it is as a party to an offence committed by Mr. Donison: R. v. Rai, 2019 BCCA 377, 381 C.C.C. (3d) 1, at paras. 55-56; R. v. Wood, 2007 ABCA 65, 77 Alta. L.R. (4th) 6, at paras. 33-34; R. v. Machushek, 2015 SKCA 41, 476 Sask. R. 194, at paras. 30-31. It is reasonable to infer that Mr. Donison trafficked on June 1, 2018 once he arrived at the building where the potential buyer was. The issue is whether Mr. Scott did anything to assist him and thereby became a party to the offence.
65It seems that in the first call, Mr. Donison directed Mr. Scott to send a third person to the buyer’s building. If Mr. Scott sent someone to deliver the drugs, this would clearly make him a party to the offence. However, it is clear in the second call that it is Mr. Donison himself who attends the building where the buyer is, which suggests that Mr. Scott never sent anyone to deliver the drugs. While Mr. Scott’s likely intent was to assist Mr. Donison in trafficking, it is also plausible that he was merely intending to assist the purchaser: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at paras. 1 to 12; R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 61. In all the circumstances, I am not satisfied beyond a reasonable doubt that Mr. Scott was a party to the transaction on this occasion.
66For the foregoing reasons, Mr. Scott is found not guilty on Count 42.
C. Cocaine Trafficking by Mr. Scott
(i) Relevant Intercepted Calls
67Mr. Scott is charged in Count 43 with trafficking cocaine jointly with Mr. Donison. The Crown relies on alleged transactions that are said to have occurred on March 29, April 15, April 27 and May 28, 2019. Mr. Scott is also charged with trafficking cocaine by himself in Count 37, but the Crown is not seeking a conviction on that charge.
68On March 29, 2018, an unidentified woman called Mr. Donison and indicated that she wanted “the same thing as earlier” and that a person she was with “wants something.” When Mr. Donison asked her how much she had in total, she told him that she had “what I had earlier when I first seen you.” Mr. Donison confirmed that this was “one four for the chick,” and the woman agreed and said that there was also “a forty,” which Mr. Donison confirmed was “one eight total.” Mr. Donison said that he would call her back in two minutes.28
69About 15 minutes later, Mr. Donison called Mr. Scott and told him to go to “Al’s house” because his “bean” (customer), “the Denise bitch,” had a “bill eighty.” Mr. Donison told Mr. Scott to “just deal with it.” A minute later, Mr. Donison called the unidentified woman and told her that he was sending someone to see her who would arrive in about 15 minutes. About 20 minutes later, Mr. Scott called Mr. Donison and told him that he was in the building. Mr. Donison told him to go to “Al’s.” Mr. Donison then called the woman and told her that “he’s coming upstairs right now.” The conversation then continued:
WOMAN: Did you tell him what I wanted?
DONISON: What ah, the one four for thing, whatever?
WOMAN: Yeah.
DONISON: Yeah, and the four on the side, right?
WOMAN: And a what?
DONISON: You said the one eight for … for 140 is what you’re saying?
WOMAN. Yes.
Mr. Donison called Mr. Scott immediately after that and told him “she wants half a B for a bill 40 … but give her like one four … and she wants another forty so she has a bill 80 for the 40.” He told Mr. Scott, "Don't steal my bean."29
70About 20 minutes later, the woman called Mr. Donison to complain that “it’s not the same” and that “it’s a different taste and … it’s a not as high like I got from yours.” Mr. Donison told her that “it’s the same powder” but that "he probably cooked it differently."30
71On April 15, 2018, Mr. Scott called Mr. Donison and told him that a guy was asking how much he owed Mr. Donison. Mr. Donison replied that it was "190 for two balls. It's two separate occasions. … So it'll be 340 owes to me."31
72On April 27, 2018, Mr. Scott called Mr. Donison, who told him that he was about to get the “loud” (marijuana) and come over there in about 40 minutes. Mr. Scott told Mr. Donison that a person named Sid said that he has the money. Mr. Donison said to tell Sid to call him. About 35 minutes later, they spoke again and Mr. Donison told Mr. Scott that he was going to get the “loud.” Mr. Scott complained that this would take a long time. Mr. Donison told Mr. Scott that Sid told him that he would not have the money until the next day. Mr. Scott told Mr. Donison that Sid had paid him the “bill” ($100) that he owed him.32
73In a call between Mr. Scott and Mr. Donison on May 28, 2018, Mr. Donison told Mr. Scott that he was at the home of a person named Cindy. Mr. Scott asked him if “that Christie girl” was there and Mr. Donison replied that she was. Mr. Scott then said:
‘Cause yow, I was supposed to like…she’s saying I shorted her. Yow, could you give her like a point for me, a fucking like soft and a point of hard?
Mr. Donison agreed to do so.33 It will be recalled that “hard” is a term for crack cocaine and “soft” is a term for powder cocaine.
(ii) Analysis
74It is clear from the March 29, 2018 calls that Mr. Scott trafficked some type of controlled substance at the behest of Mr. Donison. The transaction is for a total of $180 and involves “half a B” of the substance. According to Det. Margetson, a “B” is 1/8th of an ounce or 3.5 grams. The only indication as to the nature of the substance is that Mr. Donison refers to it as “the chick”, that it comes in the form of a powder and that it was “cooked”. While “chick” is not in Det. Margetson’s lexicon, the term “chicken” is said to mean either a kilogram of powder cocaine or 3.5 grams of crack cocaine. It is obvious that the transaction is not for a kilogram of powder cocaine, which according to Det. Margetson would have cost at least $37,000. However, he testified that 3.5 grams of cocaine would cost $220 to $250 and a gram would cost $80 to $100. The amounts involved in this transaction are consistent with this pricing. The price, the use of the term “chick” and the fact that the substance comes in the form of a powder and is “cooked” establishes that this was a cocaine transaction.
75I am not satisfied that the April 15, 2028 call establishes that Mr. Scott trafficked cocaine. While the Crown submits that the call relates to money Mr. Scott owed Mr. Donison for cocaine, it appears from the call that money is owed to Mr. Donison by another person.
76It is not clear to me why the Crown relies on the April 27, 2018 calls in relation to this count. The discussion in those calls is clearly about “loud,” which Det. Margetson testified means marijuana, not cocaine.
77The May 28, 2018 call, however, establishes that Mr. Scott asked Mr. Donison to deliver a “point of hard” and “a point of soft” on his behalf, which the evidence suggests means crack cocaine and powder cocaine.
78For the foregoing reasons, I am satisfied beyond a reasonable doubt that Mr. Scott trafficked cocaine on at least two occasions. He is accordingly found guilty on Count 43.
IV. THE GUN IN THE FIRE HOSE CABINET (COUNTS 16-19)
A. Overview
79As the result of the seizure of a firearm with an overcapacity magazine from a firehose cabinet in an apartment building on April 16, 2018, Mr. Donison is charged with possession of a loaded restricted firearm (Count 16), possession of a restricted firearm while knowingly unlicensed (Count 17), possession of a prohibited device (Count 18) and possession of a firearm while prohibited (Count 19). There is no issue that the items that were seized were a prohibited loaded firearm and a prohibited magazine, that Mr. Donison had no licence to possess them and that he was subject to a prohibition order at the relevant time. The sole issue is whether the Crown has proven beyond a reasonable doubt that Mr. Donison possessed the firearm and magazine.
B. Evidence
(i) The Finding of the Gun
80Trevor Whitty, an employee of a fire equipment supplier, was responsible for inspecting fire hoses his company supplied to buildings. On April 16, 2018, he was conducting inspections of fire extinguishers and hoses in a high rise apartment building at 33 King Street, near the intersection of Weston Road and Lawrence Avenue West in Toronto. Each floor of the building had cabinets in the hallways which contained the fire equipment. When Mr. Whitty opened the door of a cabinet on the 17th floor and removed the fire extinguisher, he discovered a black handgun. Mr. Whitty and the partner he was working with immediately went to the ground floor and notified the building manager, Baliram Muniram, of their discovery. Mr. Muniram called 911 and then all three of them returned to the 17th floor to await the arrival of the police.
81At 3:18 p.m., Cst. Peter Sikorski was dispatched to the building and arrived there at 4:10 p.m. He attended the 17th floor and seized the gun, which he discovered was loaded. Cst. Sikorski then attempted to locate fingerprints on the gun and the cabinet using a powder designed for that purpose. Cst. Sikorski testified that this powder can be black, white or grey, but could not recall what colour he used on this occasion. He did not find any fingerprints.
82The apartment units near the cabinet where the gun was found were number 1709, 1710, 1711 and 1723. Cst. Sikorski canvassed those units but received no response.
(ii) Evidence Linking Mr. Donison to the Building
83In an intercepted call on April 19, 2018, Mr. Donison called a tow truck company to ask for assistance in retrieving keys he had accidently locked in his car and provided an address of 33 King Street. Later the same day, he called for a taxi at that address. Mr. Donison called the tow truck company again the next day after locking his keys in his car again and again provided the same address.34
84Mr. Donison was arrested in Unit 1710 at 33 King Street on June 21, 2018. Two women were in the apartment with him at the time of his arrest. A telephone with the number Mr. Donison used in many of the intercepted calls was found behind a television on a dresser in a bedroom.
85Mr. Donison’s driver’s licence lists his address as being 11 Nellie Avenue in Keswick. He gave this address during several intercepted telephone calls he made to insurance companies about insurance for his car. It is the Crown’s theory that this is actually Mr. Scott’s address, as he was arrested there on June 21, 2018.
(iii) Intercepted Calls After the Seizure of the Gun
86At 5:19 p.m. on April 17, 2018, Mr. Donison called Mr. Mohamed and they had a conversation which included the following:
DONISON: Yow fam, I just left my fucking crib. And see where I put the fucking stick last time?
MOHAMED: Yeah.
DONISON: I put it right beside my fucking door, in the fire hydrant. I just went back and it’s gone, fam. The fucking black shit all over the fucking…the fucking…the fucking fire hydrant shit, like some black dust and shit all over it.
Mr. Mohamed suggested that the black dust had been used by the boydem (a term often used in the calls to refer to the police) to obtain fingerprints.35
87Three minutes later, Mr. Donison called Mr. Farah and told him that he had put “the fucking shit in … the fire hydrant where I’m at” and that it was gone and that there was black dust on the handle. Mr. Farah said something unintelligible about “the pair of kicks,” to which Mr. Donison replied, “The … yeah. What the fuck? What did you think I was talking about?” The conversation continued as follows:
DONISON: Yeah, right now. I just check. It’s gone. There’s black shit all over the fucking fire hydrant. Like some dust shit, like some … I don’t know, fam. I just talked to H.K., he says its some…but he probably says it some boydem shit for fingerprints.
FARAH: Yeah, that might be, you know.
DONISON: Yeah fam, like what the fuck?
FARAH: Was it your building?
DONISON: My building, my floor, my nigger, right beside my fucking door, fam.
Mr. Donison told Mr. Farah that he had put “it” there last night and that "it was not even there for 12 hours."36
C. Analysis
88As outlined earlier, where the Crown relies on circumstantial evidence, the issue is whether the guilt of the defendant is the only reasonable inference that can be drawn from the evidence. If there is any other reasonable inference, even a much weaker one, then the defendant is entitled to an acquittal. Alternative inference need not be based on proven facts but may also include plausible theories and reasonable possibilities.
89Counsel for Mr. Donison points out that in the call with Mr. Farah at 3:22 p.m. on April 17, 2018, Mr. Donison stated that he had “put it there last night” and that “it was not even there for 12 hours.” She submits that this means that Mr. Donison had last had the object he was speaking about no more than 12 hours earlier, which would have been in the early morning hours of April 17, 2018. The firearm, however, was found by Mr. Whitty and seized by the police during the afternoon of April 16, 2018, much earlier than 12 hours before the call with Mr. Farah. Counsel submits that it follows from this that Mr. Donison was speaking about something other than the firearm that was seized. Counsel also submits that Mr. Farah’s reference to “the pair of kicks” was a question about what was missing and Mr. Donison’s affirmative response shows that there were two missing objects while only one gun was found.
90Counsel also points out that in addition to the evidence linking Mr. Donison to the Keswick address, the calls show that Mr. Donison is frequently at a different apartment building and that there is no evidence that any identification belonging to him was found at 33 King Street.
91There are two inferences that may be drawn from the evidence in this case. The first is that Mr. Donison put the gun in the firehose cabinet near an apartment unit where he lived or stayed at some point prior to the afternoon of April 16 and discovered that it was missing on April 17, at which time he observed the fingerprint powder that had been left there by Cst. Sikorski. In this case, he must have been mistaken when he told Mr. Farah that he had put the gun there the night before and that it had been there for less than 12 hours. The reference to “the pair of kicks,” which is made in the course of an otherwise unintelligible sentence, must relate to something else.
92The alternative inference is that Mr. Donison put some other object or objects in a location meant for fire equipment at some entirely different location on April 17. This object then went missing somehow, and black powder somehow came to be at the location where the object had been. The day before Mr. Donison noticed that this object was missing, the police seized a firearm from a firehose cabinet that somebody other than Mr. Donison had placed there. By sheer coincidence, this firehose cabinet was located on the same floor as, and close to, an apartment unit that Mr. Donison had some connection to. Even if he did not live there, he called a taxi and a tow truck to that address two or three days later and was arrested in Unit 1710 in June. By another coincidence, Cst. Sikorski had left fingerprint powder on the firehose cabinet just as a powder had been left on the fire equipment location where Mr. Donison had lost his unknown object.
93In my view, the first inference is reasonable. The second is not. I cannot accept that Mr. Donison lost an object he had put in a fire hydrant just one day after some other person had put a gun in a firehose cabinet that just happened to be near an apartment Mr. Donison has some connection to and that both locations had powder on them. Nor is there any other reasonable inference that arises from the evidence. I therefore conclude that the gun that Cst. Sikorski seized had been placed there by Mr. Donison and that he therefore had possession of it. Mr. Donison is accordingly found guilty on Counts 16 to 19.
V. THE MAY 3, 2018 SEARCH OF THE ALLEGED STASH HOUSE (COUNTS 21-28)
A. Overview
94On May 3, 2018, a search warrant was executed at an apartment unit on Weston Road. Mr. Farah was arrested outside the door of the unit just prior to the search being conducted, and was allegedly in possession of oxycodone pills and a key to the apartment.
95The police located and seized the following items in the apartment, none of which were in plain view:
- Cocaine, a heroin/fentanyl mixture and benzocaine, which were found in baggies that were in an oven mitt hanging near the stove in the kitchen and in a hatch on top of the stove.
- A 9 mm STI Trojan handgun, the serial number of which had been removed, which was found inside a radiator in the kitchen.
- A magazine containing four 9 mm rounds of ammunition, which was found in the same hatch on top of the stove where the controlled substances were hidden.
B. The Charges
(i) Firearm Charges
96As a result of the seizures, Mr. Donison, Mr. Farah and Mr. Mohamed are charged with possession of a restricted weapon with accessible ammunition (Count 21), possession of a restricted weapon while knowingly unlicensed to do so (Count 22) and possession of a firearm with an altered serial number (Count 23). Mr. Donison is also charged with possessing a firearm while prohibited from doing so (Count 24).
97There is no issue that the firearm that was seized was operable, restricted and had an altered serial number and that the ammunition was accessible. Nor is it in issue that none of the defendants were licensed to possess firearms and that Mr. Donison was subject to a prohibition order at the relevant time. The sole issue is whether the Crown has proven beyond a reasonable doubt that any of the defendants possessed the firearm.
(ii) Controlled Substance Charges
98Mr. Donison and Mr. Farah are charged with possession of oxycodone for the purpose of trafficking (Count 25). Mr. Donison, Mr. Farah and Mr. Mohammed are charged with possession of three substances for the purpose of trafficking: heroin (Count 26), fentanyl (Count 27) and cocaine (Count 28).
C. Evidence
(i) “Upti’s”
99“Upti” is a Somali word that literally means “uncle,” although it is clear in several of the calls that it is also used as a term of respect. There are a number of calls in which reference is made to a place known as “Upti’s,” which the Crown alleges was a “stash house” where controlled substances were stored. For example, in a call on April 25, 2018, Mr. Farah told Mr. Donison that he had his money and Mr. Donison told him to leave it at his “crib” or "leave it in Upti's."37 In a call on April 30, 2018, Mr. Mohamed told Mr. Farah that he would leave a key for him at "Upti's."38 In two calls on May 2, 2018, Mr. Mohamed referred to there being “work” (drugs, according to Det. Margetson) at Upti's.39 In a call on May 7, 2018, Mr. Donison told Mr. Hussein that someone called Dutch wanted some “Ps” (Percocets) and that he had to "go to Upti's 'cause it's over there."40 Reference is also made to leaving “Ps” at “Upti’s” in a call between Mr. Donison and Mr. Jama on May 5, 2018.41
100There is some suggestion that there may be more than one “Upti’s” because there are references to “the old Upti’s” and "downstairs Upti's."42 In a call between Mr. Donison and a person referred to as “K-Dizzle” on June 6, 2018, K-Dizzle told Mr. Donison that he was at “Upti’s” and Mr. Donison asked him "which Upti's?"43 References to “Upti’s” continue after the May 3, 2018 search, after which the unit that was searched was presumably no longer being used.
101It is clear that the apartment that was searched on May 3, 2018 was an “Upti’s.” In a conversation between Mr. Donison and Mr. Farah on May 7, 2018, Mr. Farah refers to the day "they raided Upti's house."44
(ii) The Events of May 3, 2018 Leading Up to the Search
(a) Relevant Intercepted Calls
102In a telephone conversation at 12:11 p.m. on May 3, 2018, Mr. Farah told Mr. Donison that he believed that the police were looking for him. The conversation then continued:
DONISON: Are you with friggin’ thing?
FARAH: No [unintelligible].
DONISON: Huh?
FARAH: Fuck, I’m a … I stayed at Upti’s, I’m not gonna roll with that.
DONISON: Okay. What inside thing?
FARAH: Yeah I’m … and I stayed yeah fucking that same spot you…you and Verbz used to do that.45
103At 6:33 p.m. on May 3, 2018, an individual known as Dutch called Mr. Donison and told him that he had a friend who wanted five “Ps” (Percocets). Mr. Donison told him to call “Jabs” (Mr. Farah) and provided him with the number. Dutch then called Mr. Farah and over the course of several telephone calls they agreed to meet. During one of the calls, Mr. Farah told Dutch that he would “go to Upti’s … then I'll get it for you."46
104During a call at 9:12 p.m., Mr. Farah told Mr. Mohamed that he had left the “work” (drugs) at Upti’s and that he had a key.47
105Just before 10:00 p.m., Mr. Donison and Mr. Farah arranged to meet. At 10:07 p.m., Mr. Farah told Dutch that he was “gonna go there right now.” At 10:11 p.m., he told him that he was "coming now."48
(b) Police Testimony
106On the evening of May 3, 2018, a team of police officers were in the process of obtaining a search warrant for the Weston Road apartment. They also wished to arrest Mr. Farah on charges related to the discharge of a firearm and had information that he may be staying at the Weston Road address. At 7:17 p.m., Sgt. Gerrard Arulandandem attended that address and observed Mr. Farah leaving the building and get into a car that drove away. A short time later, Sgt. Arulandandem observed Mr. Farah re-enter the building.
107At 10:12 p.m., police officers conducting surveillance on a car being driven by Mr. Donison observed it drive to the Weston Road address. Mr. Donison’s car was boxed in by police vehicles. However, he was not arrested and was later allowed to leave.
108At 10:14 p.m., Sgt. Arulandandem was inside the building and observed Mr. Farah standing near the door of the unit the police wished to search. According to Sgt. Arulandandem, Mr. Farah had his hand clenched. Sgt. Arulandandem advised Mr. Farah that he was under arrest and ordered him to show him his hands. When Mr. Farah did not move, Sgt. Arulandandem forced him to the ground just as other officers were arriving. Sgt. Arulandandem searched Mr. Farah and testified that he found, among other things, three white pills (later tested to be oxycodone) in his left hand.
109Sgt. Arulandandem testified that when he first came upon Mr. Farah, he had a key in his right hand. Sgt. Arulandandem testified that he did not seize the key and did not know what happened to it. Another officer, Sgt. Steinwall, testified that he was given a key at some point and was told that it was Mr. Farah’s. He could not recall who gave him the key. He testified that Sgt. Arulandandem later told him that the key had been in Mr. Farah’s pocket.
110The police did not use a key to enter the apartment prior to searching it and instead forcibly breached the door using a battering ram. Sgt. Steinwall testified that he later tried using the key he had been given on the front door of the apartment. The key fit into the lock but would not turn. Sgt. Steinwall speculated that this was because the lock had been damaged when the door was breached.
(iii) Intercepted Calls Following the Search
111Mr. Donison called Mr. Mohammed just before 11:00 p.m. on May 3, 2018 and told him that “Jabs just got knocked.” He described having his car boxed in by the police and told Mr. Mohamed that the police had told him “something about your buddy … something about firearms and some shit like that.” Mr. Mohamed asked him if the police had searched the “crib” and Mr. Donison replied that they had. He said “I don’t even know if this guy got knocked with the fucking thing” and “I don’t know if it was fucking where he said it was or if he had it."49 In another call between them a few hours later, Mr. Donison said "I don't know if I should go to Upti's and go get the teeth."50
112At 10:19 a.m., Mr. Mohamed received a call from a person identified as Debo who asked him what had happened to Mr. Farah. Mr. Mohamed told him that Mr. Farah had gone to a “bean’s crib” to get some “work” and both he and Mr. Donison had been arrested but Mr. Donison was later released. Debo asked Mr. Mohamed if Mr. Farah had been “knock with it” and Mr. Mohamed replied, “I’m not even sure, fam. I think he was in the crib but … you know I had it with us all day."51
113At 11:12 a.m., Mr. Mohamed called an unidentified woman and told her that he was going to go to “that bean’s crib Jabs got knocked at to see if the T.V. and shit was still there” but had decided against it.52
114At 12:35 p.m., Mr. Donison called Mr. Mohamed and asked him if he had a key to “Upti’s crib” because he was there. Mr. Mohamed told him that he had never had a key. Mr. Donison said that the door was locked.53 A short while later, Mr. Donison called Mr. Mohamed again:
DONISON: I’m in this house, fam, the house is fucking flipped over, fam.
MOHAMED: [Unintelligible] … see everything is just like … is everything there still?
DONISON: Yeah, everything’s here, fam, but yo the fucking … they even ripped out the fucking … remember where we hid the, the, the stick?
MOHAMED: Yeah.
DONISON Yeah, that shit’s ripped out. Like the house is fucked up, fam.
Mr. Donison told Mr. Mohamed that they would not be able to return to the place and that he would take the television and leave.54
115On May 5, 2018, Mr. Donison had a conversation with Mr. Jama in which he told him about the arrest of Mr. Farah. Mr. Donison said that Dutch wanted to buy “Ps” so he had asked Mr. Farah to get some from “Upti’s.” As he was waiting for Mr. Farah outside the building, his car was boxed in by the police. Mr. Donison also said the following:
They found … they found the … a little bit of dizz, a little bit of work, and the found the fucking …this…the…I guess [unintelligible] …apparently they found the stick where we hid it, you know.55
116On May 7, 2018, Mr. Donison had a conversation with Mr. Hussein in which he told him about the arrest of Mr. Farah and the search of the apartment:
DONISON: So fucking, Jabs is like upstairs somewhere …
HUSSEIN: Yeah.
DONISON: …then fucking boom, they leave the house now. I guess they found like the stick in the vent, they found some work in the top lid where you flip the oven, you know.
HUSSEIN: Yeah.
DONISON: Yeah, they found some work there and the stick in there, you know.56
D. Analysis
(i) Relevant Legal Principles
117Except for the oxycodone in Mr. Farah’s hand, none of the controlled substances or the firearm were in the actual possession of any of the defendants. The issue is whether they or any one of them were in constructive possession of the items. According to s. 4(3)(a)(ii) of the Criminal Code, constructive possession exists if a person has the item in question “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.” Thus, to prove constructive possession, the Crown must prove that the defendant (1) has knowledge of the character of the item in question; (2) knowingly put or kept the item in a particular place (which need not belong to or be owned by him); and (3) intends to have the item in the place for his own use or benefit or that of another person: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 44-47; R. v. Morelli, 2010 SCC 8, [2010] 2 S.C.R. 600, at paras. 16-17.
118Section 4(3)(b) of the Criminal Code defines joint possession as follows:
4.(3)(b) where one of two of 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.
Joint possession may be actual or constructive.
119All forms of possession require proof of actual knowledge as well as a measure of control: R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at paras. 15-16, aff’d 2006 SCC 26, [2206] 1 S.C.R. 940. Proof of subjective knowledge is required. Proving that a defendant ought to have known of the existence of the prohibited item is insufficient: R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, at paras. 29-30. The Crown is also required to prove that each accused had control over the prohibited item, not simply some element of control over the premises where the item was kept: R. v. Masters, 2014 ONCA 556, 313 C.C.C. (3d) 275, at para. 23.
120The Crown may rely on both direct and circumstantial evidence to prove possession: Lights, at para. 48. As outlined earlier, a conviction may be based on circumstantial evidence where the guilt of the defendant is the only reasonable inference to be drawn from the evidence. However, alternative reasonable inferences need not be based on proven facts and may arise from plausible theories or reasonable possibilities, although the Crown is not required to disprove every possible conjecture: Villaroman, at paras. 35-37.
121In cases such at this where premises are used by multiple individuals, one plausible alternative inference may be that the prohibited item in question was placed there without the knowledge of the others. If such a reasonable possibility cannot be excluded, there can be no conviction: R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at paras. 29-31, 34-36.
(ii) “Coded Language”
122The Crown relies on some of the intercepted calls with respect to the issue of knowledge of the firearm. In none of these calls are words such as “gun,” “pistol” or “firearm” used. However, other words are used, particularly “thing”, “stick” and “teeth,” which the Crown alleges are references to guns or ammunition.
123To support its theory, the Crown sought to have a witness, D.C. Ryan Smith, qualified as an expert in “the possession and trafficking of firearms and associated coded language.” According to D.C. Smith, “coded language” is the use of certain terms or phrases that are designed to conceal the meaning of what is being spoken about. While there was no objection to D.C. Smith testifying about the possession and trafficking of firearms, counsel for the defendants objected to him giving evidence about “coded language.”
124D.C. Smith has been a member of the Toronto Police Service for over 15 years and is currently a member of the Integrated Gun and Gang Task Force. Since 2013, he has been involved in six largescale investigations into the activities of street gangs: Project Kraken, Project Kronic, Project Sizzle, Project Pharoah, Project Rx and Project Traveller. All of these involved the interception of numerous telephone communications. When he became involved in each of these investigations, he received one or two hours of training in “coded language.” He relies on this training and his experience for his expertise. According to D.C. Smith, many “coded terms” are “universal.”
125D.C. Smith was initially asked by the Crown to review some of the intercepted communications and provide an opinion on whether firearms were being discussed. In his testimony on the voir dire, D.C. Smith acknowledged that he reviewed these conversations knowing that they were intercepted during a firearms investigation and that he did so with a “presumption of criminality.” Not surprisingly, he concluded that the conversations were about firearms.
126Ultimately, the Crown modified its position and sought only to have D.C. Smith testify that he had heard certain terms used to refer to firearms and ammunition during past investigations. The Crown did not seek to have him comment on any of the intercepted calls in this case. I permitted D.C. Smith to give evidence of this nature. The Crown also sought to have him give evidence about the meaning of certain Jamaican Patois and Somali words. I did not permit him to do so. D.C. Smith speaks neither language and his knowledge of the meanings of terms were based entirely on what he had been told by others.
127While I permitted D.C. Smith to give evidence about terms he had heard used to refer to firearms in past investigations, there are several reasons why I am not prepared to rely on his evidence.
128First, I have significant concerns about D.C. Smith’s impartiality. While he testified to having heard certain terms being used to refer to firearms in the past, it is unclear how he verified this. The fact that he approached the intercepted communications in this case with a “presumption of criminality” suggests that he may have had the same approach in past cases.
129I am also concerned about D.C. Smith’s insistence on using the term “coded language.” The word “code” denotes the use of words to represent other words for the purpose of secrecy. A code only works if a limited number of people are aware of it. It is difficult to understand how a code can be “universal,” as D.C. Smith testified. What D.C. Smith is really describing is the use of slang or colloquialisms. In my view, failing to distinguish colloquial language from true code is problematic because it adds a potentially prejudicial aura of criminality to the use of slang terms that may be common among certain populations, including those who may be racialized.
130This leads to my third concern about D.C. Smith’s evidence. While I did not hear much evidence about the nature of the past investigative projects he was involved in, they are familiar to those who work in the criminal courts in Toronto. Like this case, most of these investigations focussed on racialized and low-income areas in Toronto, many of which had large populations from a variety of racialized ethnic groups. D.C. Smith’s opinion appears to be based on the implicit assumption that the targets of all of these investigations are a homogenous group and that facts about individuals of Jamaican origin from the Jane and Finch area of Toronto can be applied to individuals of Somali origin from the Weston Road and Lawrence Avenue West area. Absent a sufficient evidentiary foundation, which is lacking in this case, this amounts to little more than stereotyping.
131While I have not relied on D.C. Smith’s evidence, this does not necessarily mean that I reject the Crown’s theory with respect to how some words are used in this case. In some cases, the context in which words are spoken allow one to infer their meaning in other contexts. I have drawn such inferences where it was appropriate to do so.
(iii) The Charges Against Mr. Donison
(a) Firearm Charges
132It is clear from the intercepted communications that Mr. Donison had access to “Upti’s” and went there frequently to obtain drugs he sold. While there may have been more than one “Upti’s,” it is clear that Mr. Donison had access to the one on Weston Road, both before and after the execution of the search warrant.
133However, as noted earlier, the fact that Mr. Donison had some control over the premises does not by itself make him guilty of possessing everything within them. The firearm that was seized was not in plain view. Unless Mr. Donison knew that it was there, he cannot be found guilty of possessing it.
134The Crown submits that Mr. Donison’s use of the words “thing” and “stick” are references to the firearm and show that he had had knowledge of it. I am not persuaded that the word “thing” is a reference to the firearm. It will be recalled that earlier in the day on May 3, 2018, Mr. Donison asked Mr. Farah, who had stayed the night at “Upti’s,” if he had the “thing” and Mr. Farah replied that he was “not gonna roll with that.” While this may have been a reference to the firearm, it could have been a reference to any number of other things.
135I take a different view with respect to the word “stick.” Mr. Donison used the word “stick” to mean firearm on more than one occasion. On April 17, 2018, Mr. Donison told Mr. Mohamed that he had put the “stick” in the fire hydrant by the front door and it was missing. This is clearly a reference to a firearm. On April 30, 2018, Mr. Donison had a conversation with an unknown male who told him about having seen an “undie” (undercover police officer) who “had her stick out, like you could see her stick on her waist.” During the conversation on May 5, 2018 when Mr. Donison told Mr. Jama about having his car boxed in by the police, he told him that “[t]here’s like eight of them around my car with sticks.” On May 7, 2018, Mr. Donison told Mr. Hussein that “they found like the stick in the vent,” which is clearly a reference to the gun that the police found inside the radiator cover.
136It is clear from these calls that Mr. Donison uses the word “stick” to refer to a firearm. During the May 4, 2018 call with Mr. Mohamed, he made reference to “where we hid the … stick.” In the May 5, 2018 call with Mr. Jama, he said, “apparently they found the stick where we hid it”. In both of these calls, Mr. Donison is clearly referring to the fact that he was involved in hiding the firearm where it was later found by the police. He had knowledge that it was there.
137The police found the ammunition in the same room as the firearm. It was readily accessible. There is no issue that Mr. Donison had no licence to possess the firearm, that he was prohibited from doing so, and that the serial number had been altered. As a result, Mr. Donison is found guilty on Counts 21, 22, 23 and 24.
(b) Controlled Substance Charges
138Mr. Donison was with Mr. Farah just prior to his arrest in front of the apartment, and Mr. Farah was there to collect “Ps,” or Percocets (which are oxycodone) for Dutch. It can be inferred from this that the oxycodone in Mr. Farah’s possession at the time of his arrest had just been retrieved from the apartment. It is clear from the intercepted calls that Mr. Donison was aware of the transaction between Mr. Farah and Dutch and therefore had knowledge that the oxycodone was in the apartment. He also aided Mr. Farah by bringing him to the apartment to retrieve oxycodone and is therefore a party to Mr. Farah’s possession. Mr. Donison is accordingly found guilty on Count 25.
139With respect to the heroin, fentanyl and cocaine, Mr. Donison was trafficking in these substances on an ongoing basis and used “Upti’s” as a place to store his supply. However, the place was also used by others for the same purpose. While I have no doubt that Mr. Donison stored heroin and cocaine at “Upti’s” at some point, I cannot discount the possibility that the drugs that were found there on May 3, 2018 were placed there by others without Mr. Donison’s knowledge. The fact that Mr. Donison knew about them after they were seized does not necessarily mean that he knew about them earlier. As a result, Mr. Donison is found not guilty on Counts 26, 27 and 28.
(iv) Mr. Farah
(a) Firearms Charges
140The fact that Mr. Farah was arrested on May 3, 2018 for possessing the firearm and told others of his arrest later is not evidence that he knew that the firearm was there.
141However, all of the controlled substances were stored in the kitchen, as was the firearm. Some of the controlled substances were in the same stove hatch as the magazine containing the 9 mm ammunition. As noted earlier, it can be inferred that Mr. Farah had recently been in the apartment to retrieve the oxycodone he intended to sell to Dutch. It is reasonable to infer that the oxycodone was stored with the other drugs in the kitchen. Even if Mr. Farah was not aware of the presence of the firearm prior to going into the apartment, he must have become aware of its presence while he was there. There is no issue that Mr. Farah had no licence to possess a firearm and that the firearm had an altered serial number. As a result, Mr. Farah is found guilty on Counts 21, 22 and 23.
(b) Controlled Substances Charges
142Mr. Farah was in actual possession of oxycodone at the time of his arrest. He is therefore found guilty on Count 25.
143My conclusions with respect to the heroin, fentanyl and cocaine are similar to my conclusions with respect to the firearm. It can be inferred that Mr. Farah had just retrieved the oxycodone from the apartment, and the controlled substances were hidden in the kitchen. Even if Mr. Farah was not aware of the presence of the other controlled substances prior to entering the apartment, he must have become aware of them after retrieving the oxycodone. Mr. Farah is accordingly found guilty on Counts 26, 27 and 28.
(v) Mr. Mohamed
(a) The Firearms Charges
144The Crown relies on the fact that Mr. Mohamed had access to “Upti’s” as well as certain specific intercepted calls which are outlined below. The fact that Mr. Mohamed had access to the premises does not establish that he had knowledge of the gun absent some specific evidence linking him to it: Bui, at paras. 35-36.
145The Crown relies on calls between Mr. Donison and Mr. Mohamed on May 3 and 4 in which they discussed Mr. Farah’s arrest and the search. In my view, there is nothing in these calls to indicate that Mr. Mohamed had knowledge of the gun prior to the search. The fact that he came to have knowledge of the gun after the fact is irrelevant.
146The Crown also relies on the May 4, 2018 conversation between Mr. Mohamed and Debo in which Debo asked whether Mr. Farah “knock with it” and Mr. Mohamed replies that he was not sure “’Cause you know I had it with us all day.” As I understand it, it is the Crown’s theory that Mr. Mohamed had the gun earlier in the day and therefore knew of its presence in the apartment. I do not accept this submission. First, it is not clear that Debo is referring to the gun when he asked if Mr. Farah got “knock” (arrested) with “it.” There had been no gun mentioned in the conversation up to that point. Earlier, Mr. Mohamed had said that Mr. Farah was at the apartment to get some “work” (drugs). It is entirely possible that Debo was referring to the “work” when he asked if Mr. Farah got “knock with it.” Second, there is no evidence that Mr. Mohamed had been to the apartment to place the firearm there. He told Debo that he had been to a basketball game with Mr. Donison, who then dropped him off because he had a curfew.
147Finally, the Crown relies on the May 4, 2018 conversation between Mr. Donison and Mr. Mohamed in which Mr. Donison asked Mr. Mohamed if he remembers “where we hid the stick” and Mr. Mohamed replies “Yeah.” The Crown submits that this means that Mr. Donison and Mr. Mohamed hid the “stick” together, or at the very least that Mr. Mohamed had knowledge of its presence. I agree that this is likely. However, it is also plausible that Mr. Mohamed came to know where the gun was hidden after it had already been seized and was simply agreeing that he remembered this information. In all the circumstances, I am not prepared to find based on Mr. Mohamed’s utterance of the single word “yeah” that he had knowledge of the gun. Put another way, I have a reasonable doubt with respect to this issue.
148For these reasons, Mr. Mohamed is found not guilty on Counts 21, 22 and 23.
(b) Controlled Substance Charges
149Mr. Mohamed is not charged with possessing the oxycodone. With respect to the heroin, fentanyl and cocaine, my conclusion is the same as it was for Mr. Donison and Mr. Farah. While it is likely that Mr. Mohamed was aware of all of the drugs in the apartment, I cannot discount the possibility that they had been placed there by others without his knowledge. Mr. Mohamed is therefore found not guilty on Counts 26, 27 and 28.
VI. THE MARCH 24, 2018 SHOOTING (COUNTS 5-9)
A. Overview
150On the morning of March 25, 2018, a parking enforcement officer found three shell casings in the parking lot of an apartment building on Scarlett Road. Relying on security video from that building and a building on Bellevue Crescent and other evidence, the Crown alleges that the casings are a result of Mr. Farah discharging a firearm at a vehicle in the parking lot the night before. It is the Crown’s theory that Mr. Farah discharged the firearm while he was a passenger in a vehicle being driven by Mr. Jama and that the firearm used was the same firearm that was seized on May 3, 2018.
151There is no evidence as to the identity of the individuals in the car that was shot at and it unknown if any of them suffered injuries.
B. The Charges
152Mr. Farah and Mr. Jama are jointly charged with attempted murder using a restricted firearm (Count 5), discharging a restricted firearm (Count 6) and pointing a firearm (Count 7). Mr. Farah is also charged with possessing a loaded restricted firearm (Count 8) and possessing a firearm while knowingly unlicensed (Count 9).57 There is no issue that Mr. Farah did not have a licence to possess a firearm.
C. Evidence
(i) The Discovery of the Shell Casings
153At some time after 10:30 a.m. on March 25, 2018, Wilson Silva, a parking enforcement officer, noticed three shell casings on the ground in the parking lot of an apartment building on Scarlett Road. At 11:20 a.m., he called the police, who came and photographed and then seized the casings. The casings were later sent to the Centre of Forensic Sciences (“CFS”) to be analyzed. The police also seized security video from the apartment building.
(ii) Movements of Two Men Alleged to be Mr. Farah and Mr. Jama Before the Shooting
154Beginning in September 2017, Mr. Jama was bound by a recognizance of bail which required him to reside at an apartment on the ninth floor of a specific address on Bellevue Crescent with a surety named Fardowsa Omar. Security video from that building was seized by the police.
155Video from inside the elevator shows that at 7:42 p.m. on March 24, 2018, two men whom the Crown alleges are Mr. Farah and Mr. Jama entered the elevator on the ninth floor. The man alleged to be Mr. Jama was wearing a Maple Leafs jacket while the man alleged to be Mr. Farah was wearing a black and blue North Face jacket and white shoes with a dark band near the sole. On May 9, 2018, the police seized an identical North Face jacket from what was said to be Mr. Farah’s property at the Toronto South Detention Centre (“TSDC”), where he was in custody at the time.
156The two men got off the elevator on the ground floor and walked towards the back of the building. Less than a minute later, video from the area of the door and the parking lot shows the two men exit the building and get into a silver Dodge Caravan. The man alleged to be Mr. Jama got into the driver’s seat while the man alleged to be Mr. Farah got into the passenger seat. According to records from the Ministry of Transportation, Mr. Jama’s surety, Fardowsa Omar, was the registered lessee of a silver Dodge Caravan. On March 14, 2018, a police officer doing a bail compliance check observed Mr. Jama in that Dodge Caravan.
157The Dodge Caravan drove out of the parking lot at 7:44 p.m. and returned at 8:05 p.m. The same two men got out of the van, entered the building using a key fob, and took the elevator to the ninth floor.
158At 8:38 p.m., the two men once again got into the elevator on the ninth floor, although the man alleged to be Mr. Jama was wearing a different jacket. They again got out on the ground floor, went to the parking lot and got into the Dodge Caravan in the same seats they had occupied earlier. At 8:40 p.m., the van drove out of the parking lot.
(iii) The Shooting
159Security video from the lobby at the Scarlett Road address taken at 8:47 p.m. showed a man in a blue windbreaker and a man in a black hoodie enter the foyer of the building, where they were let in and greeted by a group of four people. It is the Crown’s theory that these two men were the targets of the shooting.
160At 9:20 p.m., the two men left the building, walked to the parking lot and got into a light-coloured sedan. The lights of the sedan were turned on but it remained stationary. The sedan’s location was approximately in the same area that the shell casings were found.
161At 9:23 p.m., a Dodge Caravan drove into the Scarlett Road building parking lot. The van appeared to be grey in colour, although the video is in black and white. A minute later, the van drove out of the parking lot and up Scarlett Road, passing behind the parked sedan.
162At 9:25 p.m., the Dodge Caravan returned to the parking lot. This time, it turned into the parking lot and drove past where the sedan was parked. The van did a three-point turn and then returned the way it came. It slowed down as it passed the sedan. At this point, at about 9:26 p.m., there appeared to be a flash of light coming from the passenger side of the van. It is the Crown’s theory that this flash was caused by the discharge of the firearm.
163The van then sped quickly out of the parking lot. Immediately after, the sedan also drove quickly out of the parking lot.
164There was no evidence as to the identity of the two men in the sedan. It is unknown if either of them was injured or if the sedan was damaged.
(iv) The Movements of the Two Men at Bellevue Crescent Following the Shooting
165At 9:27 p.m., about a minute after the discharge of the firearm, the Dodge Caravan the two men had entered earlier returned to the parking lot of the Bellevue Crescent building. The distance between that building and the building on Scarlett Road is 1.1 km.
166The man alleged to be Mr. Farah got out of the passenger side of the van and the man alleged to be Mr. Jama got out of the driver’s side. They entered the building and took the elevator to the ninth floor.
(v) Relevant Intercepted Calls
167During a call between Mr. Farah and Mr. Donison at 8:50 p.m. on March 24, 2018, Mr. Farah is heard speaking to somebody in the background whom he refers to as “Khalid,” which is Mr. Jama's given name.58
168At 2:10 p.m. on March 25, 2018, Mr. Donison and Mr. Farah had a lengthy telephone conversation which included discussion about seeing security guards at Scarlett Manor (the name of the building on Scarlett Road) and Bellevue Crescent. At one point, Mr. Farah said, “me and this guy went to his crib right after, eh?” Later in the conversation, the following exchange took place:
FARAH: That shit yesterday was funny though, dog. This guy’s been … acting like some funny shit. I was dying fam. Khalid’s actually fucked, ‘cause yow, I’m telling this guy hop … fucking come out and let me just hop out, you know? The man pulls up right beside the whip grilling them.
DONISON: Who…?
FARAH: (Unintelligible).
DONISON: Who? Frigging…
FARAH: Khalid frigging…
DONISON: Di…Dizzle?
FARAH: Yeah.59
It is the Crown’s theory that this was a description of the shooting.
169In the same call, Mr. Farah told Mr. Donison about something he had been told by “some girl”:
FARAH: … they ran into a pole and then she’s like yow, … she told me who was in the car … the … the one of the … she’s like the Somalian youth was the same youth that ran over Verbz.
DONISON: That youth was in the car?
FARAH: Yeah.
DONISON: Who told you … who told you? The frigging … the frigging … the cocksucker over there?
FARAH: The cocksucker?
DONISON: Yeah, who …
FARAH: Oh, Kha… Kha…
DONISON … told you that cocksucker …
FARAH: … Khali … Khalid’s like, yow, that … remember that Queen’s youth that he fucks it? Khalid was with him yesterday.
DONISON: Oh, yeah, yeah, yeah, yeah, yeah, yeah, yeah.
FARAH: Yeah, yeah Khalid was with him yesterday and then boom, they pulled up on me after they (unintelligible). Khalid comes back to me now. The man’s like, yow, Gucci show me that’s my boy that was driving that. That same jacket, it’s Dizzy’s. He jammed it from … that’s the same jacket he jammed … took off Jizzy … Dizzy.
It is the Crown’s theory that this call shows that the motive for the shooting was to retaliate against the person who had run over a friend of Mr. Farah’s called “Verbz” on an earlier occasion and that Mr. Jama had told him of this person’s location. There was evidence that Verbz had been the victim of a hit and run in May 2016.
170Later in the same call, Mr. Donison asked Mr. Farah if he was “wearing the same shit” and Mr. Farah replied, “Just the same jacket.” Mr. Donison said, “that’s hot” and Mr. Farah replied that he was about to take it off.
(vi) Expert Evidence
(a) The Expert Witness
171Jennifer Plath, a forensic scientist in the Firearms and Toolmarks Section of the CFS, was qualified to give opinion evidence in firearm cartridge linking. Ms. Plath has a B.Sc. in biology and forensic science. Her education with respect to firearms and toolmarks examination consisted mostly of a number of courses and workshops taken through the CFS, various police forces and firearms manufacturers.
(b) Comparison of Casings
172Ms. Plath testified that it is possible to compare fired cartridge casings to determine whether they had both been fired from the same gun by examining them through a microscope. She explained that when a gun is fired, marks can be made on a cartridge casing by various parts of the gun it is fired from, including the firing pin, the “breach face” (the part of the gun which the cartridge rests up against), the ejector and the chamber walls.
173According to Ms. Plath, a comparison of cartridge casings begins with an examination of the class characteristics of the casings. Class characteristics are predetermined by the firearm manufacturer and include characteristics such as the calibre of the ammunition and the shape of the firing pin. If the class characteristics are different, then the casings could not have come from the same gun.
174If the class characteristics are the same, Ms. Plath will look at the “individual characteristics,” which she explained are “unique features that are produced on a firearm during the manufacturing process that are random, microscopic features that occur during that process.” According to Ms. Plath:
There have been numerous studies done on consecutively manufactured firearms. So, firearms that are made one right after the other where you would expect there’s the greatest potential for marks to be the same between them, and numerous studies have found that cartridge cases and bullets can be ID’d back to their specific firearm that fired them.
175In cross-examination, Ms. Plath agreed that there may also be subclass characteristics which occur within some but not all firearms of a certain type. For example, some aspect of the manufacturing process may create such subclass characteristics in a number of firearms that are manufactured, but not all firearms of that type. According to Ms. Plath, such subclass characteristics are typically gross marks. However, she later agreed that subclass characteristics can mimic individual characteristics.
(c) Comparison of the Casings Seized From the Parking Lot and Those From Test Firing of the STI Trojan
176Ms. Plath conducted a microscopic comparison of one of the shell casings found in the parking lot on Scarlett Road and one shell casing that was obtained from test firing the STI Trojan handgun seized on May 3, 2018. Although there were casings from three test firings and three casings were seized from the parking lot, she only examined and compared one casing from each group.
177Ms. Plath testified that it was her opinion that both casings were fired from the same gun and that “it was identified within the limits of practical certainty.” Ms. Plath’s explanation for how she came to this opinion was as follows:
So, looking at markings on the chamber wall, so again these fine kind of striations, so looking for patterns of agreement between the two items, and finding agreement – sufficient agreement between these markings in the chamber area, plus also a marking on the breach face areas, so looking at all of that, those fine marks and finding agreement between the two items, I came to an opinion.
(d) The Expert’s Methodology
178In cross-examination by counsel for Mr. Jama, Ms. Plath agreed that her opinion was subjective:
Q. And so, specifically with comparing casings, it’s a relatively subjective analysis because it’s your interpretation of what you’re seeing through the microscope?
A. Ultimately, it’s a subjective analysis based on objective observations of these markings that I’m making.
Q. So, you’re saying objective markings because you’re seeing a particular – well, a particular marking in the – on the breach face, or inside the chamber, or what it is you’re looking at?
A. So, I’m look …
Q. That’s the objective side of it?
A. So, I’m looking at – so, if I’m comparing two items I’m looking at, say, a particular line, I’m looking at the width of the line, its special relationship within the frame I’m looking at. Is there curvature? The valley, the dips. So, objective things I’m looking at such as width and those kinds of things, and then it is my opinion is the subjective nature of what I feel is sufficient agreement or overall agreement between two items that I can opine that two items were fired by the same firearm.
Q. So, the final decision, so to speak, is a subjective one by the individual examiner as to whether there is sufficient agreement?
A. Yes.
179Ms. Plath agreed that there was no specific number of agreements required between two items for her to conclude that there was a match. She explained that some differences were to be expected between casings from the same gun as they are not “exact replicants or clones of each other.” Her explanation with respect to how the similarities and differences affected her conclusion was as follows:
But when I’m doing my comparison, when I’m looking for that overall kind of sufficient agreement, or if it’s disagreement, again, a sufficient amount that I would not go with an identification. I could go with an elimination based on individual characteristics or an inconclusive. In this particular case, again, whether there were any disagreements, that was of no significant value as I did make an identification because there was sufficient agreement between the items.
According to Ms. Plath, there are no industry standards with respect to the number of agreements or disagreements necessary to conclude that there is or is not a match. She was unable to say how many areas of agreement she had found in this case.
180Ms. Plath had no prior experiencing examining this specific model of STI Trojan firearm, nor had she received any training with respect to it. She was unaware of any studies involving the STI Trojan. She did not examine any casings ejected from another firearm of the same make and model because “It’s not something that’s done” and because the CFS did not have one in their collection.
181According to Ms. Plath, her conclusions were reviewed by another employee at the CFS, who came to the same conclusion. There was no evidence as to the identity and qualifications of the other employee.
(e) Error Rates
182During cross-examination by counsel for Mr. Mohamed, Ms. Plath was asked about error rates with respect to the type of comparison she did:
Q. Why are error rates important? You mentioned that you had gone to some workshop. Why are they important?
A. Error rates can be important to help, I guess, give a – not a reference, but a guidance of possible errors that can be made in examinations.
Q. And there is no – am I correct that the CFS has no compilation of error rates in their findings, is that correct?
A. No, there is no discipline-wide error rate.
Q. At least in the CFS, right?
A. Well, even discipline-wide. So, within the discipline of firearms and toolmarks examiners there is no error rate and, yes, CFS, for individuals we don’t have a specific error rate either.
Q. Right. And you agree with me error rate it important because it can scientifically validate your conclusions, right? Whether …
A. Well, there are validation studies that have been done.
Q. Mm-hmm.
A. Like, numerous research and validation studies that can give an estimate of a potential error, but there is no set error rate for the discipline.
Ms. Plath later clarified that there had been validation studies done on particular models of firearm, but that the results of those only applied to those models. Ms. Plath explained, “there are numerous studies ongoing to come up with some kind of error rate, but as of right now there is no discipline-wide error rate.”
D. Analysis
(i) Overview
183The primary issue with respect to these counts is whether the Crown has proven beyond a reasonable doubt that Mr. Farah and Mr. Jama were the people inside the Dodge Caravan from which a gun was fired. If they were, then other issues must be resolved with respect to their intent at the time the gun was discharged as well as Mr. Jama’s role and level of knowledge.
184Before analysing the evidence the Crown relies on with respect to these issues, I intend to address two preliminary evidentiary issues. The first relates to the co-conspirator’s exception to the hearsay rule. The second relates to the expert evidence
(ii) The Co-Conspirator’s Exception to the Hearsay Rule
185The Crown relies on intercepted calls between Mr. Donison and Mr. Farah, not only as evidence against Mr. Farah but against Mr. Jama as well. In particular, the Crown wishes to rely on Mr. Farah’s statement to Mr. Donison that Mr. Jama “pulls up right beside the whip grilling them” and that Mr. Jama told him where the targets of the shooting would be.
186In cases where there is a conspiracy or other joint criminal enterprise, the statement of one co-conspirator or co-actor may be admissible against the others in certain circumstances. To use the out-of-court statements of an individual in this way, the Crown must prove (1) beyond a reasonable doubt that a conspiracy or joint enterprise exists; (2) on a balance of probabilities that the accused against whom the statements are sought to be admitted was a member of the conspiracy, based on evidence directly admissible against him; and (3) that the out-of-court statement at issue was made in furtherance of the conspiracy or common enterprise: R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. The joint enterprise need not be a conspiracy and may include a broad common enterprise: R. v. Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 118; R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 33.
187In my view, the evidence in this case does not meet the third requirement of being “in furtherance” of a common enterprise. Having listened to the intercepted calls in question, it is clear to me that Mr. Farah was simply relaying what had occurred to Mr. Donison. He was not asking Mr. Donison to do anything to help him avoid detection, nor was he relaying information to Mr. Donison so that Mr. Donison could take additional steps in furtherance of some common enterprise. It is well established that the co-conspirator’s exception to the hearsay rule does “not make admissible against a co-conspirator a mere narrative of past events by one conspirator, even if made during the continuance of the conspiracy”: R. v. Baron and Wertman (1976), 31 C.C.C. (3d) 525 (Ont. C.A.), at p. 533; R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 274.
(iii) Expert Evidence
188In recent years, there has been a shift in the approach courts have taken to expert evidence. While courts were once willing to defer to expert witnesses who appeared to have the necessary qualifications, they are now insistent on receiving the evidence necessary to perform an independent and objective evaluation of the expert evidence. As Professor Paciocco (as he then was) put it in “Taking a ‘Goudge’ Out of Bluster and Blarney: An ‘Evidence-Based Approach’ to Expert Testimony” (2008), 13 Can. Crim. L. Rev. 135, at p. 146 (cited with approval in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 117), “the ‘trust me’ approach, once typical in Canadian courts, has been replaced by the ‘persuade me’ standard.”
189Concerns about the reliability of expert evidence usually arise in the context of inquiries into the admissibility of the evidence. However, the fact that evidence meets the admissibility threshold does not absolve the trier of fact of the responsibility of determining its reliability. That assessment also requires an “evidence-based approach” and involves more than simply deferring to the expert witness. “[T]he essence of an evidence-based approach is that the tribunal be given all of the data it needs to assess the opinion it is being asked to accept. Anything less and a ‘trust me’ approach is used”: Paciocco, at p. 155. As I will explain, Ms. Plath’s evidence fell short of this standard.
190Ms. Plath conducted what is sometimes referred to as “forensic feature-comparison,” that is, the attempt to determine whether a sample is or is not associated with an identified source based on the presence of similar features present in both. This method usually requires some subjective assessment of whether the degree of similarity between the sample and the source is sufficient to warrant the conclusion that there is a match. Feature comparison has a long history of use in the forensic sciences in a number of areas, including the comparison of hair samples, fingerprints, bite marks, shoeprints, tire tracks and handwriting.
191In the United States, the use of forensic feature-comparison was the subject of a study conducted by the President’s Council of Advisors on Science and Technology (“PCAST”), which in 2016 released its Report to the President – Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature Comparison Models. The Report concluded that because of the subjective nature of forensic feature-comparison, the foundational validity and reliability of any method should be empirically established before such evidence is relied upon: “For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it”: PCAST, at p. 6.
192With respect to the type of analysis at issue in this case, PCAST noted that at the time of its report, only one reliable study had been done with respect to the validity of the methodology, which in PCAST’s view was insufficient to establish scientific foundational validity: PCAST, at p. 12. As a result, PCAST made the following findings (at pp. 112-113):
Foundational validity. PCAST finds that firearms analysis currently falls short of the criteria for foundational validity, because there is only a single appropriately designed study to measure validity and estimate reliability. The scientific criteria for foundational validity require more than one such study, to demonstrate reproducibility.
Whether firearms analysis should be deemed admissible based on current evidence is a decision that belongs to the courts.
If firearms analysis is allowed in court, the scientific criteria for validity as applied should be understood to require clearly reporting the error rates seen in appropriately designed black-box studies (estimated at 1 in 66, with a 95 percent confidence limit of 1 in 46, in the one such study to date).
Validity as applied. If firearms analysis is allowed in court, validity as applied would, from a scientific standpoint, require that the expert:
(1) has undergone rigorous proficiency testing on a large number of test problems to evaluate his or her capability and performance, and discloses the results of the proficiency testing; and
(2) discloses whether, when performing the examination, he or she was aware of any other facts of the case that might influence the conclusion.
193Since the PCAST Report, some American courts have admitted firearm examination evidence, but only after the government adduced evidence of additional studies establishing foundational validity and, more importantly, the relevant error rate associated with the type of comparison being conducted: United States v. Harris, Criminal Action No.: 19-358 (RC) (D.D.C. Nov. 4, 2020), at pp. 9-14; United States v. Brown, 973 F.3d 667 (7th Cir.), at pp. 702-704. In some cases, courts have admitted the evidence but prevented the expert from testifying that there had been a conclusive match: United States v. Davis, Case No.: 4:18-cr-00011 (W.D. Va. Sep. 11, 2019), at pp. 9-15.
194In this case, not only has there been no evidence about an error rate, Ms. Plath denied in her testimony that any such error rate exists. The fact that no error rate exists suggests that the methodology being employed has not been validated or, if it has, the results of such validation have not been disclosed. In the absence of such evidence, Ms. Plath’s testimony that there has been a match “within the limits of practical certainty” is, with respect, largely meaningless. In addition to this, there has been no evidence that Ms. Plath has undergone any proficiency testing.
195It may be that Ms. Plath’s methodology is very accurate and reliable. However, the evidence that would be required to draw such a conclusion is largely absent in this case.
196For these reasons, I am not prepared to conclude that there was a “match” between the casing found in the parking lot on Scarlett Road and the casing from the handgun seized on May 3, 2020. At its highest, the evidence shows that there were some similarities between them and that they may have both come from the same gun.
(iv) Identity
197In my view, the Crown has established that the gun was discharged from the Dodge Caravan seen on the security video. The location of the van is consistent with where the casings are found, there is a flash seen on the video, and the van then drives away quickly. The real issue is whether the Crown has proven that Mr. Farah and Mr. Jama were in the van.
198I am satisfied that the two men seen on the Bellevue Court security video are Mr. Farah and Mr. Jama. While the quality of the video is not sufficient for me to make a positive identification based on that alone, the men in the video clearly resemble Mr. Farah and Mr. Jama. There is evidence that Mr. Jama lived not only in that building, but on the ninth floor, which is where the two men got on and off the elevator. There is also evidence linking Mr. Jama to the Dodge Caravan. The fact that Mr. Farah is heard speaking to someone he refers to as “Khalid” on the March 24 intercepted call is evidence that the two men were together that day.
199I am not relying on evidence that the police seized a jacket identical to the one seen in the video from Mr. Farah’s property at the TSDC. There was no admissible evidence that the jacket seized from the TSDC belonged to Mr. Farah. The officer who seized it, Det. Bill Leermaker, testified that he seized the jacket from a locker that a TSDC employee named “Derek” told him contained Mr. Farah’s property. “Derek” did not testify, and anything he told Det. Leermaker is inadmissible hearsay.
200Having concluded that Mr. Farah and Mr. Jama were the two men who got into a silver Dodge Caravan, I must next determine whether this was the same Dodge Caravan from which the gun was fired later than evening. Mr. Farah and Mr. Jama left the Bellevue Court address at 8:40 p.m. A Dodge Caravan was first seen at the Scarlett Road address, which is 1.1 km away, at 9:23 p.m., 43 minutes later. The Dodge Caravan left the Scarlett Road Caravan immediately after the gun was fired at 9:26 p.m. Mr. Jama and Mr. Farah were seen returning to Bellevue Court about a minute or two later at 9:27 or 9:28 p.m. It is clear that they had time to get to Scarlett Road and return to Bellevue Court. However, I also note that