Introduction

[1] Chanthol Hang and Gregory Rouse are charged with offences the following offences, all alleged to have taken place on September 7, 2017:

Count 1: They are jointly charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
Count 2: They are jointly charged with possession of schedule 1 controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act;
Count 3: They are jointly charged with possession of proceeds of crime, to wit, a sum of money over $5,000, contrary to s. 354(1)(a() of the Criminal Code;
Count 4: Mr. Hang is charged with operate a motor vehicle in a manner dangerous to the public, contrary to s. 249(1)(a) of the Criminal Code; and
Count 5: Mr. Rouse is charged with resist a peace officer engaged in the execution of his duty by arresting him, contrary to s. 129(a) of the Criminal Code.

[2] The facts of the case are not complicated, though many are in dispute.

[3] On October 7, 2017, the co-accused were seen by a Peel Police Oficer Detective Constable Grant ("D/C Grant") together in a rented Honda Civic driven by Mr. Hang. The officer testified that it appeared to him that the Civic took off from him. He followed it for a few blocks and said it was driven at excessive speeds. Mr. Hang pulled into a residential driveway on Lully Court in Mississauga. Mr. Rouse immediately left the front passenger seat and went to the door of the residence where he banged on the door. It is agreed that the resident of that home did not know either of the co-accused and that no one from the household had given them permission to park in the driveway.

[4] D/C Grant officer spoke to Mr. Hang, who remained in the Civic. He testified that he told Mr. Hang that he was being investigated for dangerous driving.

[5] While investigating Mr. Hang, D/C. Grant saw a black duffel bag in the footwell of the front passenger side seat. After seeing what he believed was Mr. Hang accessing the bag, the officer had safety concerns and so removed the bag from the vehicle. As he did so, he could see wads of cash in it. The bag contained 6 bricks of cash, with a value of $44,500 CDN. In addition, $1,980 CDN in cash was retrieved from the footwell of the front passenger seat. Mr. Hang was told by the officer that he was under arrest for possession of property obtained by crime.

[6] The officer then tried to arrest Mr. Rouse, who had left the car as soon as it stopped and was at the residence door banging. Mr. Rouse resisted him. There was an altercation in which Mr. Rouse was tasered before being arrested. Seized from him on his arrest was $4,025 in cash, located in his pant pocket.

[7] While D/C Grant was arresting Mr. Rouse, Mr. Hang, who remained in the Civic, threw what turned out to be a brick of cocaine, weighing about 1 kilogram, out the passenger window of the Civic. It was retrieved from the driveway near the car. That cocaine's value was between $48,000 and $99,460.

[8] A small baggie containing 1.65 grams of cocaine was retrieved from the lawn next door and is the basis for count 2.

[9] Other officers arrived and Mr. Hang was arrested.

[10] The Crown's position is that the co-accused jointly possessed the brick of cocaine and the black duffel bag of cash, said to be proceeds of crime. The Crown says that Mr. Hang possessed the small baggie of cocaine and that he threw it out the window at the same time as he threw the larger brick. The Crown agrees that Mr. Rouse should be acquitted of the count 2 possession of cocaine charge. At the conclusion of the Crown's case, the Crown invited me to dismiss the dangerous driving charge against Mr. Hang (count 4).

[11] Both accused take issue with much of the testimony of D/C Grant, whose evidence they submit is not credible.

[12] Mr. Hang testified. He denied having any knowledge of the contents of the black bag prior to seeing the cash when the officer removed it from the car. He denied having any knowledge that there was cocaine in the car. He said that he had seen Mr. Rouse fidget under the seat prior to leaving the car and so wanted to see what was there. He agreed that having located the brick of cocaine, he threw it out the window to distance himself from it. He said he had no knowledge of the baggie of cocaine.

[13] Both the Crown and counsel for Mr. Rouse submit that Mr. Hang is not a credible witness. Mr. Rouse did not testify. Counsel for Mr. Rouse submits that the cocaine and duffel bag were Mr. Hang's alone and that the Crown has not proven that he had knowledge and control of either the cocaine or the cash.

[14] No challenge was made to the validity of the co-accused's detention, the removal of the black bag from the Civic or the arrest or search of either accused.

Relevant Evidence

a) Mr. Hang's Criminal Record

[15] By way of background, Mr. Hang acknowledged having a fairly extensive criminal record, filed as Exhibit 8. He explained agreed under cross-examination by counsel for Mr. Rouse that his 2002 theft conviction was for having stolen clothes from the Bay. His 2003 conviction for obstructing a peace officer related to him giving a false name to the officer when he was on bail conditions. He agreed that he had lied to try to avoid more trouble. His 2004 convictions for theft and possession of property obtained by crime were for driving a stolen vehicle with stolen electronics.

b) Mr. Hang's background and the arrangement with "Tyce"

[16] Mr. Hang testified that he met his wife 15 years ago and decided to stop getting into trouble with the law going forward. He says he has had a full time job for three years. Mr. Hang agreed that at the time of the allegations, he was low on money and had a family to support.

[17] Mr. Hang said that he had lived in Peel region for 15 years. He said that he lived with his wife and daughter at his in-laws' home. He was asked under cross-examination about a statement that he made to the police after his arrest on September 7, 2017, He agreed that in the statement, when asked where he was living, he had said at 100 York Gate Blvd in North York with his mother. He explained the inconsistency on the basis that his mailing address was at his mother's, but said that he actually stayed at his in-laws'. When the statement was played for him, he agreed that he had said that he lived with his mother and brother. He then said that the majority of time he was with his wife during the week, because it was easier for work, but that on weekends he was with his family.

[18] Mr. Hang said that three or four months before September 7, 2017, he was at a bar in Brampton with some buddies playing pool. In the lounge area next to them, there was another group. Mr. Hang said he struck up conversation with them. He met a man named Tyce, whom he described as a light skinned black guy, with a big chain and a nice watch. He does not know Tyce's last name, but concluded from his appearance that he was doing well for himself.

[19] According to Mr. Hang, Tyce asked him where he was from and what he did for work. Mr. Hang told him that he was laid off and that it was hard to get work with a criminal record. Under cross-examination, Mr. Hang agreed that the second fact he told Tyce, a person he had just met, was that he had a criminal record. Mr. Hang agreed that he asked Tyce nothing about himself, but had offered that he had a criminal record. Mr. Hang said that he did not usually tell people about his record, and agreed that it is odd to do so.

[20] Under cross-examination, Mr. Hang said that Tyce's appearance included a big gold chain with diamonds, a nice watch and a couple of rings. When it was suggested that Mr. Hang knew he was up to no good, Mr. Hang said he didn't judge and that Tyce could have been a successful business guy or a rapper.

[21] Mr. Hang testified that a couple of weeks later, he was at the same bar and Tyce arrived. Later, Tyce wanted to talk to him outside and asked if Mr. Hang was interested in work. He testified that Tyce told him that he had some "girls" that need driving around and that he would pay cash. It was nothing criminal, but he would just drive them around. Mr. Hang agreed, believing, he says, that it seemed fine and that he had a vehicle and a license. Tyce told him not to call him on a personal phone and to get a "pay as you go" phone. Mr. Hang believed that Tyce wanted to stay "low profile" and thought this was better for him too so his wife did not ask about what he was doing.

[22] Mr. Hang said that he agreed with Tyce that it was better to have a "pay as you go phone" than to delete messages between them. That made sense to him. He said that when his wife was around, he put the phone on vibrate. Under cross-examination, Mr. Hang confirmed that he thought this driving was legitimate and that there was nothing illegal in what he was being asked to do, but agreed that he did not want Tyce's phone number in his phone because he did not want his wife to know about Tyce.

[23] Mr. Hang testified that he assumed at first that Tyce was a pimp. He got a "pay as you go" phone and called Tyce to organize the work.

[24] Mr. Hang described his first drive for Tyce. He was told to look for a woman of a specific description on a specific night at 8:00 or 9:00 p.m. at the Bramalea City Centre. He located her, and she asked to go to her workplace, a strip club on the airport strip on Airport Road and Derry Road in Mississauga. He said that the drive was 45 minutes or so.

[25] Under cross-examination about this trip, Mr. Hang said he thought he had been paid $50 for this drive. When it was suggested that the trip was 6 km, Mr. Hang said he did not know and was not good at math. He did agree that it did not make sense that a 6 km trip would take 45 minutes. He agreed that an Uber trip from Bramalea City Centre to the airport would cost less than $20. Asked why the job he was doing existed at all, Mr. Hang suggested that Tyce was trying to bribe him to trust him by driving girls, although he said that he had asked Tyce about this and that Tyce said he was not bribing him. Mr. Hang knew he was being overpaid for these jobs.

[26] Under further cross-examination, Mr. Hang confirmed that this first trip took 45 minutes, but agreed that it is a 12 minute drive. He explained that it was possible that he was not familiar with those areas because he did not live there or grow up there. However, he also said that he had lived and worked in Brampton for 14 or 15 years, and then changed his evidence to say that he did not stay in Brampton often and spent the majority of the time staying with his mother.

[27] After that initial drive, Mr. Hang said that he did additional drives for Tyce, estimating that he had driven four or five different women, sometimes two at a time. He thought he made 15 to 20 trips for Tyce, on weekends and the odd weekday.

[28] Mr. Hang testified in chief that for two to three days a week, involving three or at most four trips, he was paid $300 to $400 a week in cash. Tyce would send someone else to meet Mr. Hang at a fast food location and pay him in cash. Under cross-examination, when asked if he was making $100 a trip, based on what he had said, his response was "not really" and said he was paid between $50 and $250 a trip.

[29] After he started work, Mr. Hang said that his only communication with Tyce was through "pay as you go" phones. He never saw him at the bar again.

[30] Mr. Hang agreed that he lied to his wife about working for Tyce and told her he was working for a cousin on weekends delivering food. At the time, he had no other work and was borrowing money from family. It was suggested to Mr. Hang that he made no sense to go to such lengths to hide his job if he believed there was nothing illegal about it. His explanation was that he was desperate for money and that he didn't want his wife to worry.

[31] According to Mr. Hang, at the beginning he was asked to drive only women. He assumed from seeing them that Tyce was involved in prostitution. He did not know if this was legal or not and did not want to ask questions. Under cross-examination by counsel for the co-accused, Mr. Hang said that he did not know that pimping was illegal and that he did not think what Tyce was doing was right, but that he did not know if it was legal or not. He seemed to think it was against his morals, but was unsure whether what he was doing in driving girls where they needed to go was illegal.

[32] After a while, Mr. Hang said that he was also asked to drive guys. He thought he had driven males three or four times. He said that they asked to go somewhere and they paid him, but that he was uncomfortable with this. He said that with the girls, he knew that they were going to strip clubs but with the men, he did not know who they were, or where he was taking them or why.

[33] Under cross-examination, the Crown suggested to Mr. Hang that he never had the job for Tyce at all. He denied making this up.

c) Mr. Hang's evidence about the September 7, 2017 plan and driving Mr. Rouse to Lully Court

[34] Mr. Hang testified that on September 7, he was driving a rental car because his car had broken down. He said that Tyce told him the time and location on Brandon Gate where he was supposed to pick up Mr. Rouse. Mr. Rouse was described as black, five foot 6 or 7 inches tall, and Tyce said to ask for "Mouse". He testified that he had never before met or spoken to Mr. Rouse.

[35] Mr. Hang was asked about his statement to police in which he had said that Mr. Rouse was a person he knew, who used to live in the same building, and that he saw him and asked for a ride. Mr. Hang said he lied to the officer because he had not wanted to tell him that he had picked up a "random" person. Mr. Hang acknowledged that he also lied to the police when he told them that he was in the Malton area to see his daughter and that he used Brandon Gate to avoid the rail tracks on his way to see his daughter.

[36] Mr Hang testified that he picked up "Mouse" as requested by Tyce. He said that Mr. Rouse had a black gym bag with him. Mr. Hang pulled over and confirmed that the person was "Mouse". He said "Mouse" got into the passenger side of the car and asked Mr. Hang to start driving. Mr. Rouse did not give him an address, but said to take him to a buddy's house. Mr. Hang acknowledged having lied to the police when he said that Mr. Rouse had just seen him and, because it was raining, had asked for a ride.

[37] Mr. Rouse told him to take the first left. Mr. Hang said that it seemed like Mr. Rouse had forgotten something that and that he started digging into his bag and asked Mr. Hang to pull over. Mr. Rouse then looked in the bag and told Mr. Hang everything was ok and that they could get going. Mr. Hang did not see what was in the bag. As he pulled out, Mr. Hang said that Mr. Rouse asked if he could go faster.

[38] Under cross-examination by counsel for Mr. Rouse, Mr. Hang confirmed that when he pulled over, he saw Mr. Rouse fiddling with the bag. When it was suggested to him that this was when Mr. Rouse put the brick of cocaine under the seat, Mr. Hang said he did not see that and while he tried to look, he did not want to be nosy.

[39] Mr. Hang said that as Mr. Rouse asked him to go faster, he saw the police cruiser and got panicked. He did not know if the officer was after them. Mr. Hang testified that he accelerated to up to 60 kph as he approached Clara. He said it could not have been as high as 100 kph, but could have been a bit over 60 kph. According to him, at the intersection with Clara, he hit the brakes, remained in motion and made a rolling stop. After making the turn, he lost sight of the cruiser.

[40] Mr. Hang testified that he would never drive in the manner described by D/C Grant. Under cross-examination, he agreed that he had a conviction for dangerous driving and agreed that it was not true that he never drove like that. He said that since becoming a father, he has changed his mentality and would never drive in a way that would harm people.

[41] Mr. Hang said that Mr. Rouse then told him to make the next right (onto Lully Court) and to turn into a driveway. Mr. Hang was not familiar with the house and Mr. Rouse did not say why they were going there.

d) D/C Grant's evidence about the investigation and the drive to Lully Court

[42] On September 7, 2017, Peel Regional Police Officer D/C Grant was in uniform in a police cruiser. As he drove east on Brandon Gate, he passed Langworthy, which ran south from Brandon Gate, and saw Mr. Hang's rented Civic pulled into the curb parked, facing south. He made a u-turn to go south on Langworthy and said that the Civic rapidly accelerated southbound.

[43] According to D/C Grant, the Civic did not stop at the stop sign where Langworthy meets Clara, and made a wide turn to go west on Clara. He followed, but lost sight of it, and then saw it turn again and go north on Lully Court.

[44] Under cross-examination, D/C Grant said that he thought the Civic had accelerated from a stopped position to 100 kph in about 10 seconds as it went south on Langworthy. He would not agree that the car might have only got to a speed of 60 or 70 kph, and insisted it had been up to 100 kph. He agreed that there had been some deceleration as the car went right on Clara, but said he did not see brake lights as the car made a wide turn. He did not agree that the car made a rolling stop, but said it he heard no screeching.

e) The Events at 7531 Lully Court

[45] Mr. Hang said that as soon as they stopped in the driveway, Mr. Rouse fiddled with the bag. He then jumped out of the car leaving the bag behind. Under cross-examination, he said that as they pulled into the driveway it looked like Mr. Rouse was doing something with the bag. Mr. Hang said it was partially unzipped and that he could not see into it. Mr. Hang also testified that he now believes that Mr. Rouse removed a brick of cocaine from his bag and put it under the car seat, although he did not see this. Mr. Rouse went to the porch of the residence and rang the bell and knocked at the door. The police cruiser then pulled in.

[46] D/C Grant followed the Civic and saw it pull into the driveway at 7531 Lully. He pulled in behind it in the driveway to investigate for dangerous driving.

The first interaction at the driver's side window

[47] Consistent with Mr. Hang's account, D/C Grant said that the front passenger, Mr. Rouse, got out of the Civic quickly and walked around the front of the car towards the residence. He walked up to the stoop and began ringing the bell and knocking on the front door, something he continued to do in the minutes after.

[48] D/C Grant said he considered this as a traffic stop for dangerous operation of a motor vehicle. He called it in to dispatch and went to the driver's window and spoke to Mr. Hang.

[49] According to the officer, he told Mr. Hang that the reason for the stop was the dangerous driving he had observed. While speaking to Mr. Hang, he said that he immediately saw a black duffel bag on the floor of the front passenger seat. He does not know if it was open or closed. He testified that he said, "Your buddy left this", to which Mr. Hang responded, "Uh, that's none of my business".

[50] D/C Grant said that he found Mr. Hang's response odd and asked him for his driver's license, ownership and insurance. He described Mr. Hang's hands as shaking profusely and he appeared nervous as he handed over the documents.

[51] Under cross-examination, D/C Grant denied that this first thing he asked Mr. Hang was whether he had drugs or how much. He testified that he did not ask about drugs. He was firm that he advised about the dangerous driving stop and then made the statement about the bag. He did not ask whose bag it was and said that his concern was that the passenger appeared to have left the bag behind. He denied that Mr. Hang had said that the bag was not his and was sure he had said that it was none of his business.

[52] D/C Grant said that he looked at Mr. Rouse, who was still knocking at the door and ringing the bell at the home, with no one was responding. He turned to Mr. Rouse and said "Hey man, you left your bag in here". Mr. Rouse responded, "What bag? I'm just waiting for my friend. I'm not involved in this".

[53] According to Mr. Hang, when D/C Grant came to his window, the first thing he asked was how much drugs were in the car. Mr. Hang said that he responded, "excuse me" or words to the effect that he did not know what the officer was talking about and the officer repeated the same question. The officer asked for his license, which he gave to him. Mr. Hang said that there was no further conversation. Under cross-examination, Mr. Hang recalled saying the bag was not his, but denied ever having told the officer that it was none of his business. Asked why he didn't tell the officer that the bag was Mr. Rouse's, Mr. Hang did not really have any explanation and agreed that there was no reason for him not to have done so.

The officer returns to the cruiser and leaves Mr. Hang in the Civic

[54] While the officer believed he had reasonable grounds to arrest Mr. Hang for dangerous operation of the vehicle, he chose not to advise him of this because he had officer safety concerns and wanted another unit present before arresting Mr. Hang. He returned to his cruiser and called for another unit. While there, he saw Mr. Hang reach right over the centre console. He believed that he was accessing the black bag and was concerned about officer safety and weapons.

[55] Mr. Hang said that while D/C Grant was back in his cruiser, he stayed in his driver's seat but tried to feel under the passenger seat because he was not sure what Mr. Rouse might have hidden. He had not seen Mr. Rouse hide anything, but knew that when they had stopped, Mr. Rouse had taken time with the bag and he had not seen what he was doing. While D/C Grant was in the cruiser, Mr. Hang said he did not find anything hidden. He said he did not touch the black bag.

The second interaction with Mr. Hang and removal of the bag

[56] D/C Grant returned to the driver's side window because he was concerned about Mr. Hang's actions. He said that Mr. Hang had returned to a normal seated position and had his hands on his legs. He was shaking profusely. The officer told him to stop reaching for the bag and said that Mr. Hang responded, "It's just a bag, man". Under cross-examination he was sure that he never asked Mr. Hang to open the bag and that Mr. Hang never told him he was not touching the bag. D/C Grant said that the bag had been moved and was partially under the front passenger seat and nearer to the console. In order to try to stall Mr. Hang, he said "buddy, chill out, it's just a traffic stop". He said that Mr. Hang reached back to the black bag and said "man, it's just a bag".

[57] D/C Grant was adamant under cross-examination that he had never asked Mr. Hang whose bag it was or what was in it and that Mr. Hang had never said the bag was not his.

[58] D/C Grant said he told Mr. Hang to stop reaching for the bag a second time and asked for his car keys. He said that Mr. Hang did not say anything but did not want to give the keys up. Reluctantly, he said the Mr. Hang gave him the keys and then tried to manoeuvre the black bag under the front passenger seat.

[59] Mr. Hang gave a slightly different account of this second interaction at the driver's window. He said that when the officer returned to his car, he asked for his keys, which he handed to him. He said he was not reluctant to do so. Mr. Hang did say that he was scared and nervous because he did not know what was going on and what problems he had got himself into.

[60] Mr. Hang said that the officer also he asked if it was his bag, and he said it was not. At another point, Mr. Hang said that the officer asked him to open the bag and that he responded that it was not touching it because it was not his. Mr. Hang said that the officer asked him a second time to open it and he said no. Under cross-examination, Mr. Hang said that after he refused a third time to open the bag, the officer was upset and so went over and lifted the bag out.

[61] D/C Grant said he decided to get the bag out of the car. He went around the back of the car to the passenger side window. He grabbed the bag, which he saw for the first time was open. He was firm he had not opened it. He could see "wads of cash" in it. He placed it on the ground outside the car.

[62] Mr Hang said that the officer reached into the open window and took the bag out. As he did so, because it was partially open, bundles of cash came out. Mr. Hang said that the officer said something like, "you won an award or something". Mr. Hang said that this was the first time he had seen the contents of the bag. Mr. Hang's recollection was that the officer left the bag in the car and then went to deal with Mr. Rouse.

The arrest of Mr. Rouse

[63] D/C Grant said that Mr. Rouse was still at the front door of the house and looked at him. The officer said to Mr. Hang, "well this is his bag, as you said". Mr. Hang did not react. D/C Grant then told Mr. Hang he was under arrest for property obtained by crime and walked up the stairs to Mr. Rouse.

[64] According to D/C Grant, he grabbed Mr. Rouse's right arm and told him he was under arrest for possession of property obtained by crime. He tried to manoeuvre Mr. Rouse toward the residence to brace him against the house. Mr. Rouse flexed his muscles and tensed up. The officer told him not to resist and to put his hands behind his back. He said that Mr. Rouse turned to face him and that they struggled as the officer tried to get his arms behind his back and place him in the handcuffs. The officer again requested another officer to attend quickly. Mr. Rouse yelled "for what" and the officer told him for the money in the bag. According to the officer, Mr. Rouse said, "what bag?" D/C Grant said that he had Mr. Rouse's arm behind his back and was trying to get the left arm to cuff him. He said he was using his weight to brace Mr. Rouse against the residence but that he was fighting against him. He told Mr. Rouse to stop resisting a minimum of five times. He felt that Mr. Rouse was tensing up and resisting the officer's force to get his hands behind his back. Mr. Rouse also kept trying to turn to face the officer.

[65] It was suggested to the officer that in his initial approach to Mr. Rouse, he never advised him of the reason for his arrest. The officer disagreed.

The cocaine is thrown from the Civic by Mr. Hang

[66] During the struggle with Mr. Rouse, D/C Grant said that he looked over at Mr. Hang, who was still in the driver's seat. He thought Mr. Hang was shuffling in the vehicle and appeared to be reaching to the right side, panicked. As the officer warned the struggling Mr. Rouse he was going to taser him, he saw Mr. Hang with an object (conceded to be the brick of cocaine) in his right hand that he threw "like a frisbee" through the open passenger side window.

[67] Under cross-examination, D/C Grant confirmed that Mr. Hang's throw had been from the driver's seat and was a frisbee-like toss with a big windup. He said the cocaine brick struck the window frame of the vehicle after it was thrown and landed 15 to 20 feet from the Civic. D/C Grant said that there was a clear white baggie that was thrown out at the same time. He did not see the baggie in Mr. Hang's hand, but said that he saw it leave the window at the same time. He was sure that Mr. Hang's arm had not been out the passenger side window.

[68] Under cross-examination about the baggie, D/C Grant explained that it had been found on the neighbour's grass. Asked how the baggie could have ended up in such a different location from the brick, the officer said that the baggie might have been taped to the brick and then detached when the brick hit the door frame. He did not take a photograph of it or of its location.

[69] While the officer was with Mr. Rouse, Mr. Hang said that he decided to look under the passenger seat. He claimed to have pushed the bag forward and so he could reach under the seat with his hand. He said that stuffed under the passenger seat, he felt something and pulled it out. Inside a brown Burger King bag was what looked like a large quantity of drugs. He said he was very scared and was freaking out.

[70] Mr. Hang was cross-examined as to why, if he thought that Mr. Rouse had abandoned the cocaine in his car, he would not have told the officer that it belonged to Mr. Rouse, rather than trying to get rid of it. He said he was panicked, and also suggested that he did not want to point a finger at Mr. Rouse.

[71] After holding the brick for two to three seconds, Mr. Hang said that he put it back into the bag and "whipped it out of the car". He described himself as having pitched it like a side throw through the passenger side window. Mr. Hang said that the officer's description of him having thrown the brick of cocaine like a frisbee was inaccurate. During his examination in chief, he said that when he threw it, his arm remained inside the car because he could not reach that far, and that maybe part of his hand went outside. He said that the brick did not hit any part of the car on its way out. He did not see where the package went but was sure it had not landed where it is depicted in Exhibit 4.

[72] Significant cross-examination was conducted about the manner in which the cocaine brick was thrown out of the Civic. Mr. Hang testified that he could not recall if his seatbelt had been on when he was arrested. He knew it was on when he was driving, but could not recall if he unbuckled it when stopped. When asked if he could not recall whether it was on when he tossed the cocaine out, he said it must have been off. He then said he was guessing and testified it had to have been off for him to have reached as he did, but that he could not recall and that it was possible it was still on.

[73] Mr. Hang was then asked, under continued cross-examination, about whether his hand was outside the window when he threw the cocaine. He said that his hand was almost out, but that he could not reach that far and if he had said his hand was out, that was a mistake. He then clarified that he had meant to say that his arm was not out, but that his hand must have been. At a later point, he agreed that he had been able to toss the cocaine down the alley and out of sight without his arm or hand being out the window and confirmed that he did so without any part of his body leaving the car.

[74] Mr. Hang testified about where the brick of cocaine landed. He said that he threw the brick out of sight down the alley in front of the car. He said he was able to do this without his hand or arm leaving the window. He also said it was impossible that the brick hit the car as the officer described. Mr. Hang said under cross-examination that he did not know where the brick of cocaine landed, but that he knew that it did not land where it is shown in Exhibit 4.

[75] Mr. Hang said that the baggie of cocaine was not attached to the brick when he threw if and that he never saw the baggie and did not think it had been taped to the brick.

[76] Mr. Hang testified that he recalled Constable Gagne arriving and walking between the house and obtaining the brick of cocaine. He heard D/S Grant tell him to put the brick back where he found it and did not believe Constable Gagne did so.

[77] Mr. Hang said that the photographs marked as Exhibit 3 and 4 depict the cocaine brick he put in the brown bag and threw out. He said that that brick of cocaine was not in his car before Mr. Rouse got into it and that there had been no drugs in the car.

Arrests and items located

[78] D/C Grant said that Mr. Rouse saw the object being thrown out the window and continued to struggle. He was told to stop or he would be tasered. After a final warning in which the struggling did not stop, D/C Grant deployed the taser. Mr. Rouse complied with the direction to get onto his stomach but then continued to resist.

[79] Constable Sharifi arrived on scene while D/C Grant was at the front door of the residence and Mr. Rouse, who had been tasered, was on the ground. Advised that Mr. Hang was arrestable for dangerous operation of a vehicle and possession of property obtained by crime, he had Mr. Hang get out of the Civic and arrested him. Mr. Hang was cooperative and compliant. He then assisted D/C Grant with Mr. Rouse and located $4,025 CAD in his pant pocket.

Evidence about the location of the cocaine brick

[80] According to D/C Grant, when Officer Gagne arrived, he picked up the cocaine brick. D/C Grant asked him to return it to where he had obtained it so that it could be photographed He said that the location of the cocaine as depicted in Exhibit 4 is almost exactly where it landed when Mr. Hang threw it and that Constable Gagne had it for only had it for a matter of seconds before returning it to where it had landed.

[81] Constable Gagne said he arrived on scene at 2:02 p.m. and saw D/C Grant on the porch with Mr. Rouse in custody. He was instructed to obtain the property on the ground by the residence, which was a package that looked like a brick and which he suspected was cocaine. He picked it up, walked a short distance, by which he meant three or four steps, and then was told by D/C Grant that he wanted to take photos so he put it back. He said he put it back where it is depicted in Exhibit 4.

[82] Constable Gagne was asked about an empty Burger King bag that he noted in the same general area. He thought it had been at the end of the driveway, out of view in Exhibit 4. He left that bag where it was. After the cocaine brick was photographed, he took it and put it in a brown bag that was in his cruiser, not the Burger King bag. He also saw the clear plastic bag on the lawn in front of the house depicted in Exhibit 4 and picked it up. He could not say exactly where on the lawn it had been but thought it was towards the back of the car.

The challenge to D/C Grant's notes of verbatim statements made

[83] D/C Grant testified about his verbatim recollection of what was said on the scene. In doing so, he relied on his notes. He testified that his notes recorded precise words used by him, Mr. Hang and Mr. Rouse verbatim. Initially, he said it was not possible that there were other words or conversation he had with Mr. Hang that were not recorded and that he wrote down every word exchanged and there was no small talk. He disagreed with the possibility that there could have been things he did not record.

[84] Under further cross-examination, D/C Grant said that he wrote his notes back at the station just after 4:00 p.m.. He had first seen the Civic at 1:55 p.m., so agreed that the notes were made two hours later and after a stressful situation. He testified that he could recall verbatim and with precision the 12 quotations in his notes. He said that some of them were odd and piqued his interest and the fact that they were unique in this investigation made them easier to recall.

[85] Under re-examination by the Crown, the officer agreed that he was more certain of some things having been said than others.

Mr. Hang's evidence about his own honesty

[86] Mr. Hang acknowledged, during his cross-examination, that he is not a truthful person. He said that people lie and it is normal. He agreed multiple times during his testimony that he had lied. For instance, he said that he lied to his wife about his work for Tyce. As well, he lied in his police about knowing Mr. Rouse and the circumstances of him driving him that day. He also lied by not telling the police that the cocaine was Mr. Rouse's.

[87] Asked in re-examination to explain what he had meant when he had agreed that he was not a truthful person, Mr. Hang said that lying comes out of everybody, sometimes for a good purpose and sometimes out of a bad habit. He believes he lies for a good purpose because there are things he does not want people to know that could hurt them or hurt him. He testified that he was not lying about where the cocaine came from.

Legal Principles

[88] The co-accused are presumed innocent of all of the charges that they face. The burden of proof is on the Crown to prove all of the essential elements of the offences charged beyond a reasonable doubt. This is a heavy burden and requires more than showing that the accused are probably or likely guilty. Indeed, on a spectrum, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. That said, the Crown does need not establish guilt to an absolute certainty. That places the burden of proof impossibly high.

[89] The co-accused were under no obligation to testify. Mr. Hang chose to do so. Mr. Rouse chose not to do so. I draw no adverse inference against Mr. Rouse from his decision not to testify. To do so would be to reverse the onus of proof.

[90] Mr. Hang has testified and denied having had any knowledge of the presence of cocaine or proceeds of crime in the Civic prior to locating the brick of cocaine under the passenger side seat. In assessing whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the principles set out by the Supreme Court of Canada in R. v. W.(D), 1997 319 (SCC), [1997] 3 S.C.R. 320. If I accept the accused's evidence that he was unaware of the existence of the cocaine or proceeds of crime in the Civic, I must acquit him. Even if I do not accept it, if it leaves me with a reasonable doubt, I must acquit him. Finally, even if the evidence of Mr. Hang does not leave me with a reasonable doubt regarding his guilt, I may find him guilty only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.

[91] On count 1, the possession of a controlled substance for the purpose of trafficking charge, the Crown must each of the following elements beyond a reasonable doubt:

That the accused had possession of a controlled substance. Possession is defined under the s. 4(3) of the Criminal Code as follows:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

That the accused had knowledge that the drug was a controlled substance;
That the accused possessed the controlled substance for the purpose of trafficking.

[92] In R. v Bains, 2015 ONCA 677 at paras 154-157, the court set out a helpful summary of the applicable legal principles:

154 Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended ("CDSA"), incorporates the definition of possession found in s. 4(3) of the Criminal Code so that any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code.

155 Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.

156 Constructive possession does not involve an accused having physical custody of a subject-matter. Constructive possession is established where an accused has the subject-matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession the Crown must prove beyond a reasonable doubt that an accused:

i. knows the character of the object;

ii. knowingly puts or keeps the object in a place; and

iii. intends to have the object in the place for his or her use or benefit or the use or benefit of some other person: Morelli, at para. 17.

157 As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C. C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (Ont. C.A.), at paras. 3-4; R. v. To 1992 913 (BC CA), [1992 CarswellBC 1039 (B.C. C.A.)], 1992 913; and R. v. Bryan, 2013 ONCA 97(Ont. C.A.), at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[93] On count 2, the possession of cocaine charge, the Crown must prove, in relation to the baggie of cocaine, that Mr. Hang had knowledge and control of this baggie.

[94] On count 3, the possession of property obtained by crime charge, the Crown must prove:

That the cash seized was obtained by the commission of an indictable offence;
That the accused knew it had been obtained by the commission of an indictable offence; and
That the accused had legal possession of the property, which means both possession and control.

[95] On count 5, the resist a peace officer, the Crown must prove active resistance on the part of Mr. Rouse, rather than passive resistance. The accused must be shown to have employed some degree of force: R. v. Kennedy, 2016 ONCA 879 at paras. 31-35.

[96] While there is direct evidence against Mr. Rouse on count 5, the Crown's case against the two co-accused on counts 1 to 3 and against Mr. Hang on count 2 is circumstantial. There is no direct evidence as to who had possession and control of the brick or baggie of cocaine. Nor is there direct evidence as to who had possession and control of the cash in the black bag or whether they were aware of its contents or that the cash had been obtained by the commission of an indictable offence.

[97] Before drawing an inference of guilt from circumstantial evidence, that inference must be the only reasonable inference that such evidence permits. When assessing circumstantial evidence, a trial judge is required to consider other plausible theories and other reasonable possibilities that are inconsistent with guilt. The Crown may need to negative these reasonable possibilities, but need not negative every possibility, no matter how irrational or fanciful. Other reasonable possibilities must be based on logic and experience, applied to the evidence or lack of evidence: R. v. Villaroman, 2016 SCC 33 at paras. 33 and 37-43.

Analysis

a) Credibility findings respecting Mr. Hang

[98] While Mr. Hang was under no obligation to testify, he chose to do so. I do not accept most of his evidence. Generally, his evidence was implausible, inconsistent and made little sense. It was internally inconsistent and his explanations for those inconsistencies were not compelling. Moreover, he acknowledged that he lied to his spouse, to the police and that he has previously been convicted of offences of dishonesty. Other than the fact that he threw the brick of cocaine from the car, I am persuaded that next to nothing that Mr. Hang said was truthful. In particular, I reject his whole account of his work for Tyce. I find it was fabricated to create an excuse for driving Mr. Rouse and for what he claimed was unknowingly having the cocaine and cash in his car.

[99] While I have found numerous reasons to find him incredible, quite apart from the discrepancies between his evidence and that of D/C Grant's about their interactions, I highlight some of those that I see as most significant:

Mr. Hang's account of meeting Tyce and almost immediately telling him about his own criminal record made no sense. Moreover, his story that he thought Tyce might be a successful businessman or rap star seemed to me like a weak attempt to justify agreeing to work for Tyce;
His account of how he came to work for Tyce and what he thought he was doing for him was similarly illogical. On his evidence, he was at a point in his life when, because of his marriage and daughter, he was only conducting his affairs in accordance with the law. Yet, from the outset, when he was told of the need to use pay as you go phones, he suspected that something might not be right. He knew he was driving prostitutes. He was paid in cash by third parties. He seemed to agree that his impression was that he was involved in illegal activities by Tyce. He was so concerned that he chose to lie to his wife about what he was doing. Yet, he portrayed himself as an innocent dupe who thought everything was fine. I do not accept that he was would have been or was this naïve. I find his whole explanation how and why he was working for Tyce did not hang together or make any logical sense;
Mr. Hang was internally inconsistent in the very little evidence he gave about his work as a driver. He said his first job was to drive a woman from the Bramalea City Centre to an airport strip club. In chief, he said it took 45 minutes. Under cross-examination, he agreed that this was likely a 6 km drive and that it would have taken 12 minutes. He had no legitimate explanation for this inconsistency, raising for me a real likelihood that the whole story was fabricated;
Mr. Hang's account of how he came to have Mr. Rouse in his car was inconsistent. To the police, he said that he knew Mr. Rouse and that they had lived in the same building. He said Mr. Rouse saw him and, because it was raining, he picked him up and agreed to drive him. At trial, in what I find was an attempt to distance himself from Mr. Rouse and to blame Tyce, Mr. Hang changed his version of events such that he did not know Mr. Rouse, that he did not recognize him and that there was a plan made by Tyce for him to pick Mr. Rouse up. I am not satisfied that the version of events at trial is credible, given the previous version;
Mr. Hang's account of Mr. Rouse fiddling with the bag as they drove, and then seeming to do something similar when they first arrived at the Lully Court residence, which led Mr. Hang to try to feel under the passenger seat for something, made no sense. It appeared to me to be a transparent attempt to deflect blame to Mr. Rouse. It was an unbelievable version of events. Mr. Hang acknowledged that he never saw Mr. Rouse put anything under the seat. On his account, there would have been no reason to go to the efforts that he claimed to have, both while D/C Grant was at his cruiser doing the checks and again when he was with Mr. Rouse on the porch, to locate something he had no reason to believe was hidden. Why would he think Mr. Rouse had hidden something under the seat? And why, if his initial search for it revealed nothing, would he continue to look? The idea that these efforts, which were made for no reason, just happened to produce the brick of cocaine that he had no real reason to suspect was there seemed to me to be highly unlikely. It makes much more sense to conclude that he knew that the brick of cocaine was in the car and that he intentionally located it;
Mr. Hang testified that after lifting the bag and discovering the cash, D/C Grant then returned the bag to the front seat of the car. This version of events is inconsistent with the evidence of D/C Grant, who was not challenged on having removed it. Moreover, it only makes sense that the officer, who said he had safety concerns about the bag and who then discovered what he believed to be proceeds of crime in it, would have removed it from the car in which Mr. Hang was sitting when he went to arrest Mr. Rouse. Mr. Hang's evidence about this is unreliable. That may be because he is mistaken or may be because he is trying to cast the officer in a poor light;
Mr. Hang's explanation as to why he threw the brick of cocaine out of the car in an effort to conceal it from the police was illogical. On his evidence, he had no knowledge that the brick of cocaine was in his car, had no connection to it, had found under Mr. Rouse's seat and believed was Mr. Rouse's. On those facts, he had little reason to try distance himself from it and every reason to tell the police that he had located something that he believed was Mr. Rouse's. Yet, he chose to try to get rid of it;
Mr. Hang's evidence as to how he threw the brick of cocaine out the window was also internally inconsistent as between his in chief and cross-examination. During his examination in chief, he said that a part of his hand may have been outside the window but that his arm was not. Under cross-examination, he said that he was able to reach the passenger side window from the driver's seat but that his hand was not outside the window, because it would not reach, and that it was only to the opening. He then clarified that he meant to say his arm was not out the window but that his hand must have been. At another point, he said he was able to toss the brick of cocaine to where it landed with his hands and arms inside the car. While nothing whatsoever turns on how the cocaine was thrown, this inconsistency revealed to me that Mr. Hang's evidence is unreliable. I find that this is an example of him saying whatever he could to try to undermine D/C Grant;
While he did not see where the cocaine landed after he threw it, Mr. Hang purported to be certain that it did not land where the police said it was, and as is depicted in Exhibit 4. Again, while nothing turns on where the cocaine brick was located, Mr. Hang's evidence seemed to me to be offered only to try to undermine the evidence of D/C. Grant. Indeed, how could it be that when he admitted he did not see where it landed, he was so certain that it was not at the location photographed in Exhibit 4? The difficulty with Mr. Hang's evidence becomes even more apparent when the evidence of both D/C Grant and Constable Gagne is considered. Together, their evidence supports my finding that the cocaine brick landed where it is depicted in the photos before Constable Gagne momentarily picked it up, moved it, and then replaced it at the location where he had retrieved it;
Mr. Hang has a significant criminal record with multiple offences of dishonesty including thefts and obstruction of police. These, alone, cause me to question whether he has been truthful with the court. Heightening my concerns are the fact that Mr. Hang admitted that he is not an honest person and lies to advance his interests.

b) Credibility findings respecting D/C Grant and factual findings

[100] Counsel for both accused suggest that D/C Grant has given evidence that was not believable and that I should distrust his evidence as a whole.

[101] One major area of concern for counsel is D/C Grant's evidence that he recalls the exact words uttered on scene because he recorded them verbatim in his notebook two hours later. I accept that D/C Grant is an experienced professional witness whose duty it is to remember things and then record them in his notes. I also accept that some of the things said in this investigation may have been somewhat unique and thus memorable. He also allowed, ultimately, for the possibility that he missed some things. But, I found his evidence that he had the capacity to accurately record in his notes, two hours after these stressful events, all of the various verbatim things said by both himself and the co-accused during his interactions with them difficult to accept, as a matter of human experience. His initial testimony about the degree of certainty he had about the accuracy of his notes was troubling. His initial refusal to admit to the possibility of having made any error caused me to doubt the reliability of his evidence about what was said.

[102] On the basis of his evidence as a whole, I cannot rely on the accuracy of the verbatim account of what was said by him and Mr. Hang in their interaction. I just do not have confidence in his evidence about those exchanges.

[103] That said, much of what D/C Grant described about the interaction he had with Mr. Hang and Mr. Rouse was not challenged by counsel. I find that his account of what transpired is generally accurate and rely on his description of his interactions with the co-accused. Indeed, much of his description of the events is confirmed by other evidence. I reject the position of counsel that his evidence is worthless as it was, generally logical, consistent and made sense.

[104] Accordingly, I make the following factual findings as to what occurred.

[105] D/C Grant saw the Civic with the co-accused in it on Langworthy. He followed it to the Lully Court residence. D/C Grant suggested that the car travelled at 100 kph. Mr. Hang, upon whom I cannot rely, said it could have been over 60 kph. I need not decide the speed at which the Civic was driven. It appears to be agreed that Mr. Hang drove relatively quickly, made a rolling stop at the intersection of Langworthy and Clara and was followed by D/C Grant. There was no challenge to the validity of D/C Grant's stop of the Civic and investigation of Mr. Hang for dangerous driving. On this basis, I accept that this was a valid police stop for dangerous driving.

[106] There is also no challenge to the officer's evidence that after arriving at the Lully Court residence, Mr. Rouse quickly left the Civic and went to repeatedly knock at the residence door and continued to do so. The officer then spoke to Mr. Hang and requested his identification. The black duffel bag was, at this point, in the passenger side footwell. The officer saw it and could not see into it. There was, without doubt, some conversation between Mr. Hang and D/C Grant. It may have included comments about the bag. I cannot be sure. The officer returned to his cruiser with Mr. Hang's identification.

[107] I find that while he was in the cruiser, D/C Grant saw Mr. Hang make movements in the car that led him to be concerned about whether Mr. Hang was accessing the bag. The officer could not see what Mr. Hang was doing, I do not rely on what Mr. Hang said he was doing as accurate, but I accept his acknowledgment that he made movements. These movements led the officer to have concerns for his safety and to return to Mr. Hang's passenger window.

[108] I cannot say precisely what conversation followed. I accept that D/C Grant continued to have safety concerns about the readily accessible black duffel bag and its contents. As a result, he decided, reasonably in my view, to remove the bag from the vehicle. No issue is taken by counsel about the legitimacy of this decision. It was while he did this that the cash first became apparent to the officer. On this basis, he had reasonable and probable grounds to arrest both occupants of the Civic for possession of property obtained by crime.

[109] I accept that D/C Grant told Mr. Hang he was under arrest and then went to arrest Mr. Rouse. The officer's evidence as to what happened during his interaction with Mr. Rouse was challenged by counsel for Mr. Rouse. However, I find that the officer's evidence was clear, coherent and consistent. There was nothing that seemed to me unreasonable about it. The officer tried to effect a proper arrest. He was met with resistance from Mr. Rouse that he explained in detail. After repeated warnings, he had little choice but to engage the taser to complete the arrest. I accept the evidence of D/C Grant about this interaction.

[110] It was while he was attempting to arrest Mr. Rouse that Mr. Hang accessed the brick of cocaine that was in the car and threw it out the passenger side window. I cannot conclude Mr. Hang accurately described how he threw the cocaine out the window. Nor am I sure that D/C Grant, who was obviously distracted by Mr. Rouse, had a completely accurate and detailed memory of how the cocaine brick was thrown. While there was a significant focus by counsel on the manner in which the cocaine was thrown, I am not persuaded much really turns on this, beyond demonstrating another reason to find Mr. Hang's evidence unreliable.

[111] After considering all of the evidence, I find that Mr. Hang threw the brick of cocaine out the window and it ended up in a location at, or very close to where it was photographed in Exhibit 4. I specifically reject Mr. Hang's evidence that it was much further down the alley and that the police lied or were mistaken about where it ended up. His evidence that it had been in the Burger King bag that Constable Gagne saw further down the alley did not cause me to believe him on this point. That bag was not located with the brick of cocaine. There is no evidence that any officer removed the cocaine from such a bag. It makes no sense that the cocaine brick would have fallen out of the Burger King bag when it was thrown. In my view, Mr. Hang opportunistically tried to use the fact that there was a Burger King bag located up the alley by the police, and not retained by them because it appeared unrelated to the investigation, to his advantage tin an attempt to undermine the police about the location of the cocaine. The version of events he suggests does not accord with common sense, given that there is no question that when he threw the cocaine, he remained in the driver's seat and was not able to reach out the window to get the cocaine down the alley as he claimed.

[112] I cannot conclude that the baggie of cocaine was thrown out of the Civic at the same time as the brick. In reaching this conclusion, I do not rely on Mr. Hang's evidence that he never had the baggie. Indeed, I accept that it is possible that D/C Grant saw the baggie as he described. I just cannot be sure. He may have assumed it was thrown at the same time because of where he saw it shortly after, and thus be mistaken. But, in my opinion, it makes no sense that if the cocaine brick ended up where it did, that the baggie would have come detached and flown in a different direction to the lawn where it landed. While possible that this happened, I am not persuaded to the required degree of certainty.

[113] After the cocaine was thrown out of the car, the arrest of Mr. Rouse was completed and then Mr. Hang's arrest followed.

c) Counts 1 and 3

[114] The real issue on counts one and three is whether the Crown has proven that each of the co-accused had possession and control of the cocaine and the black duffel bag. Further, in relation to count three, the Crown must prove that each accused had knowledge of the contents of the duffel bag and knew that the cash was obtained by crime.

[115] As Hill J. observed in R. v. McIntosh, [2003] O.J. 1267 at para. 43:

In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence . . . it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 1978 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, 1995 1338 (BC CA), [1995] B.C.J. No. 2655 (B.C. C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (Ont. C.A.) at para. 1.

The cocaine charge

[116] The defence concedes that the amount of cocaine present meets the possession for the purpose of trafficking requirement.

[117] There is no doubt that one or both of the occupants of the Civic had knowledge of the presence of the brick of cocaine in the car and that it was cocaine. Its value was between $48,000 and $99,000 CAD. That value suggests that its owner would not risk losing it. I reject the possibility that the cocaine would have been entrusted to those in the vehicle without either of them knowing it was there: R. v. Bryan, 2013 ONCA 97 at para 11.

[118] I also accept as likely the Crown's suggestion that neither party would have been the sole person with knowledge of the presence of the cocaine in the car, without the other person knowing. Doing so would have created a risk of discovery and possible loss: R. v. McIntosh, at paras. 45-46.

[119] There is no doubt that Mr. Hang handled the cocaine. It is an agreed fact that his fingerprint was lifted from the outer surface of the packaging. There is also no question that Mr. Hang had the cocaine brick in his hand before he threw it from the Civic and thus that the fingerprint could have been left at that point.

[120] The Crown concedes that this momentary control over the cocaine brick, alone, would be insufficient to support a finding of possession if I were to accept that he unexpectedly found the cocaine brick and immediately removed it from the car: R. v. York, 2005 BCCA 74 at para. 21.

[121] As a result, given that neither accused was in personal possession of the cocaine, the question is whether the circumstantial evidence as a whole establishes that the constructive possession of one or both of them is the only reasonable inference.

[122] I turn first to Mr. Hang's possession of the cocaine.

[123] His position is that Mr. Rouse brought the cocaine into the car, hid it under the passenger seat and fled the Civic. Counsel suggests that because the value of the cocaine equals about the same as the amount of cash seized from the Civic and Mr. Rouse's pocket, it is logical to conclude that Mr. Rouse had likely sold one brick of cocaine and was about to sell a second. I accept that this theory is a distinct possibility, but it is certainly not the only possibility.

[124] In my view, the totality of the evidence supports a conclusion that Mr. Hang did not unexpectedly find the brick of cocaine under the passenger seat of the car as he described. To the contrary, I am persuaded that he was aware that the cocaine was in the car from before the Civic stopped at Lully Court and that he was in constructive possession of it. In reaching this view, I rely on the following:

The vehicle was rented by Mr. Hang and was in his control. He had the keys. He was the driver. The very valuable cocaine was being transported in that vehicle. There is no evidence as to where the cocaine in the car came from except from him. I have rejected Mr. Hang's evidence as to how Mr. Rouse came to be in the Civic and reject the suggestion that Mr. Rouse covertly brought the cocaine into the car as Mr. Hang described;
When D/C Grant first spoke to Mr. Hang, he was, admittedly, nervous. I accept the officer's evidence that he was hesitant to hand over his car keys to the officer. It is likely that his nervousness and hesitancy to give up his car keys flowed from his knowledge that there were illicit things in the car;
Mr. Hang was proximate to the cocaine brick in the car. Wherever it was, he was able to access it from the driver's seat, which he never left;
I reject the evidence of Mr. Hang that Mr. Rouse hid the cocaine under the seat and that Mr. Hang somehow unexpectedly found it. Had Mr. Rouse done so in either two of the small windows of opportunity Mr. Hang suggests that he had, it is not believable that Mr. Hang would not have seen him doing so. If he never saw Mr. Rouse hiding the cocaine, it makes no sense that he would have reached under the seat to find it, unless he knew that there was cocaine there;
Mr. Hang's action of so quickly throwing the cocaine out of the passenger side window while the officer seemed to be busy with Mr. Rouse suggests that he was well aware, before stopping the car, both of the package's location and that there was cocaine contained inside it. He was clear that he knew that the package contained drugs. He knew the importance of immediately trying to distance himself from it and reacted quickly as a result.
I do not believe Mr. Hang's evidence that he was unaware that the cocaine was in the car. Nor does his evidence leave me with a reasonable doubt as to his state of knowledge or control of the cocaine brick. On the evidence as a whole, I am satisfied beyond a reasonable doubt that he was aware that the cocaine was in the car that he controlled and that he had both possession and control of it prior to the time he threw it out the window.

[125] I turn now to whether the Crown has proven that Mr. Rouse was also in possession of the cocaine. While I accept that his conduct, in immediately fleeing the car when he realized that the police cruiser was present, is suggestive of the fact that he knew that there was something illicit in the vehicle, he could have been fleeing from either or both the cocaine or cash in the duffel bag. The flight does not compel a conclusion that he was aware of the cocaine.

[126] I am not satisfied that the evidence as a whole supports a conclusion that Mr. Rouse was in possession of the brick of cocaine. In reaching this conclusion, I note the following:

There is no evidence that the brick of cocaine was in plain view of Mr. Rouse while he was in the Civic. Indeed, the fact that D/C Grant did not see it suggests that it was not;
Nor is there any evidence that the cocaine was within Mr. Rouse's immediate reach while he was in the front passenger seat. While I accept that it was within Mr. Hang's reach, which can be inferred from the fact he was able to quickly and easily access it to toss it out the window, there is no evidence that it was also within Mr. Rouse's reach;
Given that the vehicle was rented by Mr. Hang, and not Mr. Rouse, it seems to me less likely that Mr. Rouse had an opportunity to conceal the cocaine in the car than did Mr. Hang;
While I take a different view about the duffel bag containing the cash that was at Mr. Rouse's feet in the Civic, there is just no evidence of Mr. Rouse's awareness of the presence of the cocaine brick being in the Civic.

[127] On this basis, Mr. Rouse must be acquitted of count one. Mr. Hang is found guilty on this count.

The possession of proceeds of crime charge

[128] To establish guilt, the Crown must prove that the accused knew that the bag contained proceeds of crime and intended to possess it and had the necessary control over it. In my view, the only reasonable inference available from the circumstantial evidence is that both accused were in possession of property obtained by crime.

[129] In the black bag was six bricks of cash with a total value of $44,500 CAD. A detailed description of the manner in which the bricks were packaged is contained in Exhibit 1, the Agreed Statement of Admissions. An additional $1,980 CAD was located in the footwell of the front passenger seat. This is the cash that spilled out when D/C Grant lifted the bag from the car.

[130] A significant distinction between the cocaine brick and the black duffel bag is that the black duffel bag was in plain view at the feet of Mr. Rouse while the co-accused were driving in the Civic together. I am satisfied that both of the accused were aware of the presence of the black duffel bag in the Civic. The bag was in the front seat where Mr. Rouse's feet would have been. It would have been immediately apparent to Mr. Hang. It is inconceivable that both of them would not have known it was there. While proximity to the bag is not a sufficient basis upon which to find knowledge and control, it is a circumstance that can properly be considered: R. v. Smith, 2016 ONCA 25 at para. 85.

[131] It is also, in my view, inconceivable that both of them would not have been aware of the contents of the bag. While there were clothes in the bag, it also contained a significant amount of carefully packaged cash. The person to whom this money belonged would not have entrusted a bag with this amount of money to a person unaware of its contents: R. v. Bryan, at para. 11. Nor would either one of Mr. Hang or Mr. Rouse have risked the bag being in plain sight, with that amount of cash, without the other person also being aware of its contents.

[132] In reaching the view that Mr. Hang was aware of the contents of the bag, and in possession of it, I rely, in addition to the above, on the following:

Mr. Hang had rented the vehicle and permitted Mr. Rouse to be in the front seat of the car travelling with him, aware that the bag was at his feet. He had some control over what was in his car, even if he was not closest to the bag;
When D/C Grant returned to Mr. Hang's window to speak to him after seeing him fidgeting with something in the car, he saw Mr. Hang trying to move the bag, thereby exercising some control over it;
The bag was partially open when D/C Grant lifted it to remove it, making it more likely that as a person proximate to the bag, Mr. Hang was aware of its contents;
I have found that Mr. Hang was in possession of a significant quantity of cocaine. In my view, it is likely that someone who possessed that amount of cocaine, which is acknowledged to have been for the purpose of trafficking, would also have been in possession of a significant amount of cash and would know that it was proceeds of crime;
Mr. Hang conducted himself in a manner suggestive of his knowledge that there was something unlawful in the vehicle. As I have already indicated, Mr. Hang appeared nervous and reluctant to give up his car keys. While his conduct could have been as a result of the cocaine, it is also reasonable to believe that it could have been because of the obvious presence of the black bag, which he knew was immediately apparent to anyone looking into the Civic, including D/C Grant;
I accept D/C Grant's evidence that after Mr. Rouse got out of the Civic, Mr. Hang moved the bag. I find that he did this because he was concerned about its presence and contents;
I do not believe Mr. Hang's evidence that he was unaware of the contents of the duffel bag. Nor does his evidence leave me with a reasonable doubt about his knowledge or control of the bag. On the basis of the evidence that I do accept, I am satisfied of his guilt beyond a reasonable doubt.

[133] In reaching the view that Mr. Rouse was aware of the contents of the bag, and in possession of it, I rely, in addition to those factors already mentioned, on the following:

The black duffel bag was right at Mr. Rouse's feet. It is extremely unlikely that if Mr. Hang had placed it there, knowing its contents, he would have situated it so close to Mr. Rouse without Mr. Rouse not also knowing its contents;
Mr. Rouse's first action when the Civic was stopped was to get out of the car in what I find was an effort to distance himself from what he knew was in the Civic. There is no reasonable explanation for him repeatedly ringing the doorbell and knocking at the door of the residence, where he was unknown to the occupants, other than that he was urgently trying to get away;
Mr. Rouse, who had an earned income of $15,185 in 2015, and had no income reported to CRA in 2016, had $4,025 CAD cash in his pocket when he was arrested. This is a significant amount for a person who appears to have had little to no income in the preceding two years. I find it is more than coincidence that when this amount of money is added to the cash in the black bag of $44,500 and the cash that fell out of the bag of $1,980, there was a total of $50,505, which is about the value of a kilogram of cocaine, the very amount in the brick. This suggests that Mr. Rouse may well have been involved in the sale of a kilogram of cocaine at some time before the police interaction and that he had some of the proceeds in his pocket, while the rest were in the duffel bag.

[134] In my view, the circumstantial evidence also compels a conclusion that the seized cash was the proceeds of crime from trafficking in drugs and that both co-accused knew that it had been obtained by trafficking in drugs. In reaching this conclusion, I rely on:

The amount of cash found in the black duffel back and front passenger footwell;
The manner in which the cash was organized and bundled in six bricks using mostly small bills;
The fact that there was also a very valuable 1 kg brick of cocaine in the car that was possessed by Mr. Hang for the purpose of trafficking and about which Mr. Rouse was very likely aware;
The fact that a small baggie of cocaine was found proximate to the car, likely as a result of efforts by one or both of the two accused to get rid of the illicit drugs that they were involved in trafficking;
The conduct of both accused once they realized that D/C Grant had followed them to Lully Court.

[135] I am satisfied that the co-accused were both in possession of the cash in the black duffel bag and were both aware that it was obtained through the sale of narcotics. As a result, both accused will be found guilty on counts and three.

d) Count 2

[136] The Crown alleges that Mr. Hang possessed the baggie of cocaine and that he tossed if from the car at the same time as he tossed the cocaine brick.

[137] No photograph was taken of the baggie or of its location on the lawn. It appears to have landed toward the back end of Civic, whereas the brick of cocaine was at the front end of the car. It is unlikely that when the brick of cocaine was thrown from the car, it would have gone in one direction out the window and the baggie would have become detached and gone in a completely different direction as suggested by D/C Grant's evidence. While it is possible, I agree with Mr. Crothers that this seems to defy logic and physics.

[138] Counsel for Mr. Hang suggests that it is just as likely that when Mr. Rouse got out of the passenger side of the car, he could have tossed the baggie of cocaine as he went around the car and to the porch of the residence that was closer to the driver's side of the car. I agree that this is a reasonable possibility.

[139] I am not satisfied beyond a reasonable doubt that Mr. Hang tossed the baggie of cocaine out of the car at the time he threw the brick of cocaine out the window. He may have. But it seems to me unlikely. On this basis, I am not satisfied that Mr. Hang had possession and control of the baggie of cocaine and he will be found not guilty on this count.

[140] The Crown submits that Mr. Rouse should be acquitted of this count. I agree.

e) Count 5

[141] The Crown says that on the basis of D/C Grant's evidence, Mr. Rouse should be found guilty of resisting arrest. The Crown submits that D/C Grant was engaged in Mr. Rouse's lawful arrest and that Mr. Rouse tensed and kept turning to try to face the officer and resisted being handcuffed.

[142] The defence position is that D/C Grant's evidence is not believable and that he would be dangerous to convict Mr. Rouse on the basis of it.

[143] As I have indicated, there are aspects of D/C Grant's evidence that trouble me. I cannot accept his verbatim account of the words used by either him or the co-accused during this interaction. That said, I accept his general description as to the events that unfolded.

[144] In my view, D/C Grant's description of what happened when he attempted to arrest Mr. Rouse was credible and believable. I find that he tried to arrest and handcuff Mr. Rouse's hands behind his back, that Mr. Rouse repeatedly used his strength to try to prevent this. He was warned several times to stop doing this and continued to resist and to turn his body. While this may be at the low end of spectrum of resistance, the Crown has proven this offence beyond a reasonable doubt: R. v. Kennedy, at paras. 28-36; R. v. Bentley, [2003] Q.J. No. 16091 (C.S. Que.).

[145] Mr. Rouse will be found guilty on this count.

Conclusion

[146] Mr. Hang is found guilty on counts 1 and 3 and not guilty on counts 2 and 4.

[147] Mr. Rouse is found guilty on counts 3 and 5 and not guilty on counts 1 and 2.

J.W. Woollcombe J.

Released: April 30, 2021

R. v. Hang, 2021 ONSC 3166

Case Summary