Court File and Parties

Court File No.: CR-19-90000615 Date: 2021-11-12 Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Michael Godelia, Defendant

Counsel: Victoria Rivers, for the Crown Justin Yuen, for the Defendant

Heard: September 13, 14, 15, 17, 20, 2021

Reasons for Judgment

Presser J:

[1] A mixture of fentanyl and carfentanil totaling 106.05 grams (3.74 ounces) were hidden in a locked safe in the walk-in closet in a bedroom at 168 Frederick Tisdale Drive in Toronto. The drugs were found and seized by police in execution of a search warrant on November 6, 2018. Michael Godelia was charged with possession of a controlled substance for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2] The Crown case consists entirely of circumstantial evidence. The Crown position is that it can be inferred from this evidence that the safe and the room in which it was located belonged to Michael Godelia, and that Mr. Godelia had knowledge of, and control over, the drugs found in the safe. For these reasons, the Crown alleges that Mr. Godelia is guilty of possessing the fentanyl/carfentanil mixture for the purpose of trafficking.

[3] Defence witness Shane Benjamin testified that he shared the room the drugs were found in with Mr. Godelia; that he had exclusive access to the safe; and that the drugs were his alone. His evidence was that Mr. Godelia did not know about the drugs, have control over them, or consent to their presence.

[4] In light of the circumstantial Crown case and the exculpatory defence evidence, the issues I must determine are whether Mr. Benjamin’s evidence is believed or raises a reasonable doubt and, if not, whether Mr. Godelia’s guilt is the only reasonable inference to be drawn from the evidence I do accept.

I. EVIDENCE

A. Crown Case

(i) Surveillance

(a) Surveillance Observations of Michael Godelia

[5] Sometime in the fall of 2018, members of the Toronto Police Service Guns and Gangs Task Force began an investigation of Mr. Godelia.

[6] Surveillance officers observed Mr. Godelia in a silver Mercedes Benz with Ontario licence plate BYHA 273 on October 22, 2018. They observed him in that same Mercedes driving to 168 Frederick Tisdale Drive on October 23, 2018, first as its passenger, and then as its driver. And they observed Mr. Godelia pulling up to the front of that address in the same Mercedes, parking on the street there, going into the townhouse, emerging with a duffle bag that he placed in the trunk of the car, moving the duffle bag to a BMW that had pulled up (and then drove away), going back into the townhouse briefly, and then exiting through the front door of the townhouse and walking away on the evening of November 4, 2018. Officers observed the same silver Mercedes parked on the street in front of 168 Frederick Tisdale drive on the evening of November 5, 2018.

[7] Also on November 5, 2018 at 8:53 p.m., police surveilling 168 Frederick Tisdale saw Mr. Godelia and a black female exit the front of the townhouse and go into a Chevy Malibu that was idling on the street in front. Officers followed the Malibu to 444 Lumsden Avenue, where at 10:16 p.m., they saw Mr. Godelia and the woman exit the car and go into the property. The Malibu drove away. It then returned to 444 Lumsden Ave at 10:53 p.m., at which time Mr. Godelia and the woman got into the car, which then proceeded to the Keg restaurant on the Esplanade in downtown Toronto. At 11:12 p.m., Mr. Godelia, an unknown black male and two unknown females entered the restaurant.

[8] Police officers made the decision to wait for the party to exit the Keg restaurant, at which time they would arrest Mr. Godelia. The arrest was made on November 6, 2018 at 1:03 a.m. after Mr. Godelia and his party left the Keg.

(b) Surveillance Observations of a Black Male, Likely Shane Benjamin

[9] In addition to observations involving Mr. Godelia, police officers surveilling 168 Frederick Tisdale and the silver Mercedes made observations involving other people and other vehicles.

[10] Some were observations of a tall black man who, it was learned at trial, was likely Shane Benjamin. On November 4, 2018 at 6:40 p.m., Det. Cstble. Haines observed a black Hyundai with licence plate CFBE 449 parked in the rear laneway behind 168 Frederick Tisdale. At 7:09 p.m., the garage door opened and a tall black male, approximately 6’2” in height, medium build, with short braids, exited through the garage door. This male, who police did not believe was Mr. Godelia, entered the Hyundai and drove away.

[11] On November 5, 2018 at 8:17 p.m., officers observed the same Hyundai pull into the rear laneway behind 168 Frederick Tisdale Drive. At 8:24 p.m., two black males got out of the car and went into the rear of the townhouse. One of the men was described as a tall, lighter skinned black man with a medium build. The other was described as thin, wearing a track suit, and having braids. At 9:48 p.m., two black men were seen leaving the townhouse and entering the black Hyundai. They sat there in the idle car until 10:35 p.m., when the Hyundai pulled away.

[12] There was evidence at trial suggesting that the taller black man in the Hyundai was likely Shane Benjamin. Mr. Benjamin testified that he is 6’2” tall, that he was living at 168 Frederick Tisdale Drive when he was in Toronto, and that he often drove dark coloured Hyundai rental cars. He also testified that he was at 168 Frederick Tisdale on November 4 and 5, 2018.

(c) Surveillance Observations of Others

[13] On the night of November 4, 2018, police observed an Asian male and female exit 168 Frederick Tisdale on foot and walk away.

[14] On November 5, 2018 at 7:20 p.m., officers observed the same Asian male walk into the townhouse at that address. At 7:40 p.m., a grey jaguar SUV was observed backing into the garage in the rear laneway behind the townhouse. The garage door closed before officers could see who was in the jaguar. Other vehicles were also observed driving up to the residence at various times.

(ii) The Search of 168 Frederick Tisdale Drive

[15] Police had earlier obtained a warrant to search the townhouse at 168 Frederick Tisdale Drive, and the silver Mercedes Benz with licence plate BYHA 273. They planned to arrest Mr. Godelia first, and then execute the search warrant.

[16] After making the arrest, Det. Cstble. Miller did a pat down search of Mr. Godelia. He found $500 cash and a set of keys in Mr. Godelia’s pocket. Det. Cstble. Miller did not have a detailed recollection of what the keys looked like. He did recall that there were keys that looked like they might open a house, and a gym membership fob. He could not remember whether there was a car key. He looked at Exhibit #3, a book of photos relating to the search, photo 53, showing keys in a lock in the door of 168 Frederick Tisdale. Det. Cstble. Miller agreed that he could not see a Mercedes key. Soon after seizing the keys, Det. Cstble. Miller gave them to the officer-in-charge of the investigation, Det. Balint.

[17] After the arrest, officers executed the search warrant.

[18] Det. Balint was able to use one of the keys seized from Mr. Godelia to open the front door of the townhouse. Officers found three people in the residence. An Asian man was found in each of two of the three bedrooms, one of them with a woman.

[19] Officers searched the multi-story townhouse. One of the bedrooms (see Exhibit #3, photo 31), the only one on the second to top floor of the house, had an en suite bathroom and a walk-in closet (see Exhibit #3, photo 32). This was the only bedroom in which no one was found when police entered the townhouse.

[20] Det. Cstble. Doyle searched this room. Immediately to the left of the door leading into the walk-in closet, behind a laundry basket, he found a small blue Rubbermaid plastic three-drawer container. The top drawer contained a parking ticket dated July 28, 2017 for the Mercedes Benz licence plate BYHA273 (Exhibit #10, also depicted in Exhibit #3, photo 45) and a set of keys. A photo of this drawer and its contents was in Exhibit #3, photo 44. Under the clothing hanging along the left side of the closet, Det. Cstble. Doyle found a white metal shelf, which had a rectangular safe on it (Exhibit 33, photo 47). The safe had a keypad and keyhole. Det. Cstble. Doyle used the keys he had found in the Rubbermaid drawer to open the safe. Inside it, he found a clear plastic bag containing a cream coloured powder (see Exhibit #3, photo 48). The officer thought it was cocaine or heroin. He later learned that it had tested to be a fentanyl/carfentanil mixture. Det. Cstble. Doyle sent the drug packaging to be tested for fingerprints. He was not certain if that testing had been done. He said he would have been advised if any fingerprints had been found on the drug packaging. He was not so advised.

[21] Det. Cstble. Doyle also found two digital scales on top of a Nike shoe box, and several documents with the name Michael Godelia on them in or under a red folder. The shoe box and the folder were in the back-left corner of the walk-in closet, depicted in Exhibit #3, photo 32. The officer did not know whether the scales were working, and there was no evidence as to whether they were dusted for fingerprints. The documents with Mr. Godelia’s name on them were:

• A CIBC bank book with the name Michael Godelia handwritten onto the cover (Exhibit #6). The most recent banking entry in this bank book was dated August 21, 2013;
• A subpoena to Michael Godelia at 856 Weston Road, Toronto, to attend at court on June 12, 2017 (Exhibit #7);
• A Toronto Employment & Social Services Statement of Income for Michael Godelia at 856 Weston Road, York, for the period of February 16, 2017 to March 16, 2017 (Exhibit #8); and
• A Notice of Fine to Michael Godelia at 856 Weston Road, York, for failure to surrender insurance card on April 23, 2016, with conviction date of June 7, 2016 and a fine due date of June 22, 2016 (Exhibit #9).

[22] The officer agreed that there were a lot of other documents in the red folder, but he did not seize all of them or ask Det. Balint to photograph them. He also agreed that there was a green folder in the closet. He could not recall whether there were documents in that folder. He did not seize any documents from the green folder or ask Det. Balint to photograph any that may have been in it.

[23] Det. Cstble. Doyle said that the apparel in the walk-in closet appeared to be men’s clothing and shoes. He did not provide evidence of sizing. One photo (Exhibit #3, photo 57) depicts the label on a pair of jeans found in the closet, showing the size as waist 34, length 32. Another photo (Exhibit #3, photo 55) shows a shoe box with a listed size of 9 ½.

[24] Nothing else of note was located in the townhouse at 168 Frederick Tisdale Drive.

[25] Det. Cstble. Haines searched the silver Mercedes with Det. Cstble. Johnson. The car was unlocked. He knew that they had not broken into the car but could not recall using a key to open it, how it had been opened, or by whom. Det. Balint, who had used the keys seized from Mr. Godelia to open the townhouse, could not remember how officers got into the Mercedes. He did not record it. He could not recall whether the key to the Mercedes was on Mr. Godelia’s keychain. He agreed that the key could have been found in the residence but maintained that officers would have recorded finding the key there and there was no such note. Det. Balint maintained that officers would not have broken into the car but would have sealed it and sent it to the auto squad if they had not been able to open it. He returned the set of keys to Mr. Godelia’s property. They were not in evidence.

[26] Det. Cstbles. Haines and Johnson did not find anything of note in the Mercedes. They did not seize anything from it.

B. Agreed Statements of Facts and Evidence Admitted on Consent

[27] Three Agreed Statements of Fact (“ASF”) were filed as Exhibits on this trial. The first, ASF #1 (Exhibit #1) contained admissions that:

• Michael Godelia was the person arrested on November 6, 2018;
• He was in possession of $500 at the time of his arrest;
• Police seized 106.05 grams (3.74 ounces) of a suspected narcotic from a bedroom safe during the execution of a search warrant at 168 Frederick Tisdale Drive, Toronto on November 6, 2018;
• The suspected narcotic was sent to Health Canada for testing and was found to be a fentanyl/carfentanil mixture;
• The fentanyl/carfentanil was possessed for the purpose of trafficking;
• The value of the drugs, sold as a whole, is between $13,090 and $18,700. The value of the drugs, sold at the gram level, is between $21,210 and $25,452 ($200-$240 per gram); and
• Continuity of the drugs post-seizure is not an issue.

[28] The second ASF (Exhibit #11) set out that Mr. Godelia was not the registered owner of the silver Mercedes Benz bearing licence plate BYHA273.

[29] The third ASF (Exhibit #13) contained the following agreed facts:

• That, as a young person, Shane Benjamin was charged with first degree murder. He spent four years in custody before he was acquitted at trial;
• That the value of 106.05 grams (3.74 ounces) of cocaine, sold at the ounce level, is between $5, 236 and $6, 6358;
• That the value of 106.05 grams (3.74 ounces) of cocaine, sold at the gram level, is between $8,484 and $11,665.5;
• And it repeated the above-noted values for the same quantity of fentanyl/carfentanil, from the first ASF.

[30] A further Crown exhibit was filed on consent: a Ministry of Transportation Ontario (“MTO”) Driver Record for Michael Godelia, dated September 9, 2021 (Exhibit #2). This document shows that, as of September 27, 2018, Mr. Godelia had registered 168 Frederick Tisdale Drive as his address with MTO. Before that, as of January 20, 2016, his registered address was 856 Weston Road.

C. Defence Case

[31] The defence case consisted of one witness, Shane Benjamin.

[32] Before testifying, Mr. Benjamin invoked the protections of s. 13 of the Charter and s.5 of the Canada Evidence Act (“CEA”).

[33] Mr. Benjamin then went on to give evidence that the drugs at issue in this trial were his, and his alone. He said he had exclusive access to the safe. He explained that Mr. Godelia had no knowledge that the drugs were there.

[34] Mr. Benjamin maintained that he had come to court to testify because he wanted to “own up.” He said he understood that Mr. Godelia was looking at serving jail time if convicted, and he did not feel a person should go to jail for something they didn’t do. Mr. Benjamin said this had happened to him. He went to jail for four years for something he didn’t do. He did not want to let that happen to someone else.

[35] The details of Mr. Benjamin’s evidence are as follows.

[36] In the summer and fall of 2018, Mr. Benjamin was splitting his time between Thunder Bay and Toronto. He was selling drugs and facing criminal charges in Thunder Bay. He came to Toronto twice a week to have visits with his daughter under the supervision of the Children’s Aid Society. When Mr. Benjamin was in Toronto, he stayed at the residence of Michael Godelia on Frederick Tisdale Drive. He could not recall the street number of the residence, explaining that it was a long time ago and he had lived at “plenty” of other addresses since then. He had just been released from custody. Mr. Godelia agreed to let him stay there as a favour.

[37] Mr. Benjamin and Mr. Godelia were good friends at the time. Mr. Godelia knew that Mr. Benjamin had been in jail, but Mr. Benjamin maintained that Mr. Godelia did not know he had done time for drug offences, or that he was a drug dealer. He said he told Mr. Godelia he had been in custody in relation to a domestic assault.

[38] Mr. Benjamin said that a few friends lived at the Frederick Tisdale townhouse. But because he didn’t want to involve anyone else, he would not say exactly who was living there at the time. When pressed on this issue in cross-examination, and directed by the Court to answer, Mr. Benjamin said that if he was required to answer, he would say that he did not remember the names of the other residents. He said it was two Chinese men.

[39] Initially Mr. Benjamin slept on a couch in the living room on the main floor of the Frederick Tisdale townhouse. Eventually, Mr. Godelia allowed him to sleep in, and ultimately co-occupy Mr. Godelia’s bedroom on the third floor. Mr. Benjamin stayed in this room (which he identified as the room depicted in Exhibit #3, photo 31, the room in which Det. Cstble. Doyle found the drugs) frequently. He came to see the room as his. He explained that he would stay in this bedroom when Mr. Godelia was sleeping elsewhere, for example, with family or his girlfriend. If Mr. Godelia and Mr. Benjamin were both spending the night at Frederick Tisdale, one of them would sleep in the bedroom. The other would sleep on a mattress that the two men jointly paid for and set up in a basement room. Mr. Benjamin maintained that he would even sleep in the third-floor bedroom at times when Mr. Godelia was also staying at the townhouse. He said this was so even though he paid no rent there.

[40] In July of 2018, when he moved into the townhouse, Mr. Benjamin asked Mr. Godelia if he could use the safe located in the shared bedroom’s walk-in closet. There were always a lot of people in and out of the house: the roommates, their girlfriends, and a lot of other friends. There were frequent parties there, and more than 10 people would come in and out every day. Mr. Benjamin said he had “trust issues.” He wanted a safe and secure place to store documents and valuables to protect his privacy. Mr. Godelia agreed, giving Mr. Benjamin the keys to the safe and exclusive access to it. Mr. Benjamin changed the passcode for the safe and did not share the new code or the keys with anyone. No one else, not even Mr. Godelia, could access the contents of the safe.

[41] Mr. Benjamin was shown the photo of the walk-in closet, Exhibit #3, photo 32. Although the safe could not be seen in the photo (it was hidden behind hanging clothes), Mr. Benjamin was able to describe its location. He identified the location of the safe in the closet in a manner that was consistent with Det. Cstble. Doyle’s evidence as to where the officer had found the safe. Mr. Benjamin correctly explained that there was a shelf under the hanging clothing on the left side of the photo (the shelf was also not visible in the photo). He noted that the safe was on the shelf in the back-left corner of photo 32.

[42] Defence counsel asked Mr. Benjamin to identify the safe depicted in Exhibit #3, photo 47. Unfortunately, because Mr. Benjamin was testifying on zoom and defence counsel was in the courtroom in person with only a hard copy of the photo (this was a hybrid hearing), Mr. Benjamin was not able to see the photo clearly. However, he said he could describe the safe without seeing it. He then went on to describe the safe as rectangular, wider than it is tall. He said it had a keypad so that he could enter a password. It also had a keyhole, so he could put in a key and then turn the knob to open the safe. Mr. Benjamin could not recall where the keyhole was located in relation to the keypad. He explained that he had not seen the safe in three years, and that he had had several safes since then.

[43] In addition to storing personal property, like his clothing, in the closet of the shared room, Mr. Benjamin put money, CAS files, ID, and other documents he didn’t want to leave around the house, in the safe. He said Mr. Godelia knew he was storing these items in the safe. Mr. Benjamin said that, approximately one week before Mr. Godelia’s arrest, he also put the drugs that were later found and seized by police into the safe. He said that Mr. Godelia did not know he was storing drugs there. He specified that it was over 100 grams, approximately four ounces, of a cream coloured substance. He thought it was powdered cocaine but learned subsequently that the drugs were tested and found to be a different drug.

[44] In cross-examination, the Crown asked Mr. Benjamin about the price of an ounce of cocaine in November of 2018. Mr. Benjamin initially would not answer, saying these questions were irrelevant. He then said he did not know. Crown counsel suggested that the value of 3.74 ounces of cocaine in November 2018 was between $7,600 and $8,400. Mr. Benjamin disagreed, saying that the value was far less, more like $3,400. The Crown asked Mr. Benjamin whether he was aware that fentanyl and carfentanil were more expensive than cocaine. He replied that he did not deal in fentanyl or carfentanil, so he did not know whether they were more expensive than cocaine. Crown counsel went on to ask Mr. Benjamin whether cocaine is white, not cream coloured. Mr. Benjamin responded: “have you never seen cream coloured crack?” Crown counsel endeavoured to put to Mr. Benjamin that this answer was not responsive because the drugs at issue here were powdered, not crack, cocaine. Mr. Benjamin’s reply was that the drugs here were powdered cocaine.

[45] He explained that after he purchased these drugs, he did nothing with them other than store them in the safe. He did not touch, cut, or sell any of them. He explained that he still had other drugs to sell. Crown counsel asked Mr. Benjamin how much other product he still had when he purchased these drugs. He did not want to answer the question because he felt it was irrelevant. When the court told him it was relevant and directed him to answer, Mr. Benjamin said “ok then, it was a gram. What does it matter?” Mr. Benjamin said he was concerned that the Crown was asking him these questions in order to build another criminal case against him. The Crown pressed Mr. Benjamin to answer how much other narcotic he had when he bought the drugs at issue here. He responded that he had other product to unload so he put this product in the safe. He said he did not remember how much other product he had and was not going to ‘forge’ an answer. He said he had other drugs in Thunder Bay. The Crown asked Mr. Benjamin where he stored his other drugs. He said he would not answer these questions because he did not want her to use the information to arrest him. He then said he stored his other product at her house. Ultimately, Mr. Benjamin said he did not remember where he stored the other product.

[46] Mr. Benjamin said that no one knew he was storing drugs in the safe. He closed the door to the bedroom as well as the door to the walk-in closet when he put the drugs in there. No one could see him doing this. No one was ever with him when he put things in the safe. Mr. Benjamin insisted that he never told anyone, including Mr. Godelia, that he was storing drugs in the safe.

[47] In cross-examination the Crown suggested to Mr. Benjamin that he would not have put drugs in Mr. Godelia’s safe without Mr. Godelia’s knowledge and permission. This is because, the Crown suggested, Mr. Benjamin knew how much trouble Mr. Godelia could get in if the drugs were discovered. Mr. Benjamin insisted that he left the drugs in the safe without Mr. Godelia’s knowledge or permission.

[48] Mr. Benjamin explained that he would always hide the safe key somewhere in the bedroom – under the mattress, in the en suite bathroom, or somewhere in the closet like in one of the shoe boxes or in one of the plastic dresser drawers. In cross-examination, Mr. Benjamin denied that he left the safe key in the shared bedroom so that Mr. Godelia could access the safe. He maintained that he did not tell Mr. Godelia where the key was, and Mr. Godelia did not know. He explained that he always left the key in the room because that way, he wouldn’t lose it or leave it in a pocket in a different city.

[49] Mr. Benjamin was at the Frederick Tisdale townhouse on the day Mr. Godelia was arrested. He thought he left the safe key somewhere in their shared bedroom that day, but he could not remember exactly where. He thought he may have left it on a shelf or in a drawer.

[50] The drugs were the only item in the safe when police searched because, Mr. Benjamin explained, he had been in the process of transferring his possessions from Frederick Tisdale to a new Mississauga apartment he had rented. He moved items over time because he was back and forth to Thunder Bay. Mr. Benjamin was at Frederick Tisdale in the two days before Mr. Godelia’s arrest, moving his possessions. By the time Mr. Godelia was arrested, Mr. Benjamin had moved everything from the safe except the drugs, a few clothes, and possibly also a money counter from the living room. Mr. Benjamin explained that he had not yet moved the drugs from the safe because he did not have a full G driver’s licence. He did not want to move the drugs to his new residence until he had a fully licensed driver to drive him.

[51] On November 5, 2018, Mr. Benjamin was driving a rented dark coloured Hyundai. He agreed that the tall black man police saw drive up to and enter the Frederick Tisdale townhouse at 8:24 p.m. was probably him. He initially said he did not recall whether he drove to the townhouse with another person. He said he did not recall what colour boxer shorts he wore that night either. The only reason he recalled that he and Mr. Godelia had been at the townhouse on November 5^th was because Mr. Godelia was arrested later that night. The Crown asked him why, if he had a friend with him as observed by police, he did not take his drugs and let his friend drive him to his new residence. Mr. Benjamin then said he did not have anyone with him that night. He said he knew he was alone because he ended up spending the night with his girlfriend and child. He agreed that he probably spent some time in his car outside 168 Frederick Tisdale that night because he had had to leave when Mr. Godelia did. He explained that he had gotten into a dispute over money with one of the Asian males who lived there. Mr. Godelia, knowing Mr. Benjamin’s temper, did not want him to remain in the residence when Mr. Godelia was not present. Mr. Benjamin sat in the car, called his child’s mother, and made arrangements to go over there. He did not return to Frederick Tisdale that night because he heard Mr. Godelia had been arrested. He said he did not trust police with his life, so he did not want to return to a place where police were or had been.

[52] Mr. Benjamin was 27 years old at the time of this trial. He was 6’2” or 6’3” tall. At the time his pant size would depend on the material of the pants, but he would typically wear 36 or 34 waist and 36 length. He would sometimes have his pants hemmed or get other alterations. His feet were size 10 to 11.

[53] The Crown put Mr. Benjamin’s criminal record to him and filed it as Exhibit #12. He had a number convictions, dating back to 2015. These included one conviction for trafficking a Schedule I substance, two convictions for possession for the purpose of trafficking a Schedule I substance, one conviction for possession of a Schedule II substance for the purpose of trafficking, two convictions for failure to comply with court orders, three convictions for offences of violence, and one conviction for intimidation of a justice system participant. Mr. Benjamin said he did not remember what years he was charged or convicted but acknowledged that he was convicted of the offences listed on his CPIC printout.

[54] The Crown asked Mr. Benjamin if he was a cocaine dealer. He responded, “whatever you want to call it.” The Crown then asked whether, when he was involved with narcotics, it was cocaine. Mr. Benjamin replied that he was not going to tell the Crown what drugs he sells. But he acknowledged that he had been charged multiple times for drugs, he had had a number of charges withdrawn, and when he was convicted, it was in relation to cocaine. He had recently been charged with possessing fentanyl in tablet form.

[55] After Mr. Godelia was arrested, he and Mr. Benjamin remained in contact until October of 2019. They had not spoken since that time. Mr. Benjamin acknowledged that his lawyer had received and reviewed the disclosure in relation to this case, maintained that he did not review the disclosure, and said he would not reveal the content of his discussions with his lawyer.

II. ANALYSIS

A. Overview

[56] Mr. Godelia is charged with possessing the fentanyl/carfentanil mixture found in the safe for the purpose of trafficking. It is admitted that whoever possessed this quantity of fentanyl/carfentanil did so for the purpose of trafficking. To prove possession, the Crown must prove that Mr. Godelia had both knowledge and control of the drugs: R. v. Morelli, 2010 SCC 8, at para 15; R v Bains, 2015 ONCA 677, at para 155. The prosecution relied entirely on circumstantial evidence, from which it submits knowledge and control can be inferred. Defence witness Shane Benjamin testified that the drugs were his alone, and that Mr. Godelia had neither knowledge nor control.

[57] Given the circumstantial Crown case and the exculpatory defence evidence, the issues I must determine are whether Mr. Benjamin’s evidence is believed or raises a reasonable doubt as to Mr. Godelia’s knowledge and control of the drugs; and, if not, whether Mr. Godelia’s guilt is the only reasonable inference to be drawn from the evidence I do accept.

B. Circumstantial Evidence of Possession – Legal Principles

[58] The prosecution called evidence that tied Mr. Godelia to the townhouse and the room where the drugs were found. If this evidence gives rise to inferences that he had knowledge of the fentanyl/carfentanil mixture and control over it, and to no other reasonable inference inconsistent with knowledge and control, then the Crown will have succeeded in proving that he is guilty of possession for the purpose of trafficking.

[59] The position of the Crown was that the only reasonable inference available on all of the evidence was that Mr. Godelia was in personal, constructive, or joint possession of the fentanyl/carfentanil. In R. v. Pham (2005), 77 O.R. (3d) 401 (C.A.), the Ontario Court of Appeal set out the following comprehensive guide to the legal requirements of the various types of possession (at paras. 13 – 15):

Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C.19 adopts the definition of "possession" in subsection 4(3) of the Criminal Code. That section reads:

4(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 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.

Section 4(3) of the Code creates three types of possession:

(i)personal possession as outlined in section 4(3)(a);

(ii)constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and

(iii)joint possession as defined in section 4(3)(b).

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.).

In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 9 B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 20 C.C.C. (3d) 440 (Ont. C.A.) [emphasis added].

[60] The Court of Appeal in Pham went on, at paras.17-18, to note that the elements required to establish possession could be proven by direct evidence or inferred from circumstantial evidence.

[61] In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada gave guidance as to the approach to be taken in cases that rely heavily on circumstantial evidence. The Court directed that juries should be cautioned against too readily drawing inferences of guilt from such evidence. Juries should be instructed that before they decide to convict on the basis of it, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits” because such an instruction helps to guard “against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences”: Villaroman, at para 30.

[62] Villaroman went on to hold that reasonable alternative inferences to guilt need not be based on proven facts. They need only be plausible based on logic and experience as applied to the evidence (at paras. 35 – 37):

In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. . . . 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. . . . 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”. . . . “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 [internal citations omitted].

[63] Schreck J. noted that in considering whether circumstantial evidence supports inferences other than guilt, alternative inferences must only be reasonable. They:

. . . need not be as strong or as compelling as the inference of guilt. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference: R. v. Knight, 2019 ONSC 2443, at para. 20

C. Mr. Benjamin’s Testimony

[64] Mr. Benjamin testified that the drugs were his, that Mr. Godelia did not know about the drugs, did not exercise control over them, and did not consent to their presence. If I believe his evidence or am left in a state of reasonable doubt by it, I must acquit Mr. Godelia. If I do not believe his evidence, and am not left in a state of reasonable doubt by it, I must still ask myself whether, on the whole of the evidence I do accept, the Crown has proven Mr. Godelia’s guilt beyond a reasonable doubt. In other words, I must ask myself whether the only reasonable inference to be drawn from all the evidence is that Mr. Godelia had knowledge and control of the drugs.

[65] There were many reasons for concern with Mr. Benjamin’s evidence. He was a combative, and at times evasive, witness. On a handful of occasions, in the face of direction or exhortation from the Court to answer questions he had been evading, Mr. Benjamin gave answers that were clearly not true but were intended to satisfy the requirement that he answer. For example, he gave answers in the nature of, to paraphrase, ‘if I am required to answer, I’ll say I don’t remember’ and ‘ok then, I had a gram of other drugs. What does it matter?’

[66] In a challenging cross-examination, Mr. Benjamin resorted to hostility toward the Crown. He responded to some of Crown counsel’s questions with derision, mockery, and disrespectful comments. He was also occasionally uncooperative and aggressive with defence counsel in his evidence-in-chief.

[67] Mr. Benjamin had a lengthy criminal record. He was an admitted drug dealer. He was resistant to answering questions about what drugs he sells, where he obtained drugs, or where he stored his drugs. He was concerned that his answers might assist the Crown or police in launching new criminal investigations and laying new charges against him. He admitted he was facing a recent drug-related charge. I conclude that Mr. Benjamin was still actively engaged in the drug trade at the time he testified at this trial. I recognize that drug convictions are typically of limited probative value in assessing credibility: R. v. Wilson, [2006] O.J. No. 2478 (C.A.) at para. 33. However, Mr. Benjamin has also been convicted of two counts of failure to comply with court orders and a count of intimidating a justice system participant. These convictions, combined with his past and ongoing criminal lifestyle, and his aggressive, disrespectful, and sometimes evasive manner of testifying reflect a disregard for the laws and norms of society. These further reflect a lack of respect for the justice system, its participants, the Court, and its proceedings. In my view, these factors are relevant to Mr. Benjamin’s credibility because they suggest that he is someone who is more likely to lie in Court: R. v. Corbett, [1988] S.C.J. No. 40; see also R. v. Brand (1995), 40 C.R. (4th) 137 (Ont. C.A.); and R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.).

[68] For these reasons, combined with some of the specific problems with his evidence that I will discuss further below, I do not believe Mr. Benjamin’s evidence in its entirety. However, many of the occasions on which Mr. Benjamin was combative, evasive, or disrespectful arose when he was being asked questions that had the potential to implicate other people (for example, the other residents of 168 Frederick Tisdale Drive). Such aggressive conduct equally arose when Mr. Benjamin was asked questions that had the potential to generate further police investigations or new criminal charges against him. He was clearly mistrustful of the police and the criminal justice system. He said so explicitly, and his demeanour conveyed this.

[69] As a person who had many criminal convictions, who had spent four years in custody for an offence of which he was not guilty, and who admitted to continuing to deal drugs, Mr. Benjamin had his reasons to be cautious in testifying. I should not be taken as holding that Mr. Benjamin was justified in his evasions or his disrespectful treatment of participants in this trial. This Court does not condone drug dealing, testimonial evasion, or any disrespect to the justice system or its participants. But I do consider Mr. Benjamin’s own reasons for comporting himself as he did relevant to assessing the impact of his performance on his credibility. I consider it quite possible that his unacceptable manner of giving evidence was a product of his fear of inculpating himself or others for new drug offences. It is at least as likely that Mr. Benjamin’s testimony and demeanour were a product of his fear and suspicion as that they were a product of dishonesty. In other words, while I do not believe Mr. Benjamin, I think it is possible that he was telling the truth in his core evidence, while being evasive and combative around details that he feared might land him or others into new trouble with the law.

[70] In addition, I found Mr. Benjamin’s stated reason for testifying compelling. I accept that a person who spent four years in custody for an offence he did not commit would be sincerely motivated to ensure that no one else suffered the same fate. Particularly if he was the one who actually committed the offence, and was, as a result, in a position to prevent a wrongful imprisonment of someone else. Mr. Benjamin’s evidence as to his reason for coming forward and ‘owning up’ was consistent, unshaken, and delivered both passionately and sincerely.

[71] Given his criminal history, ongoing criminal activity, demonstrated suspicion of the criminal justice system, and his disrespect for court proceedings, I do not believe that Mr. Benjamin would have made the decision to testify to his responsibility for these drugs lightly. Everything about this man and the way he testified telegraphed to me that he would not have given evidence inculpating himself unless he felt it was absolutely necessary to do so. I do not take the fact that he was under defence subpoena to negative this conclusion. As a matter of logic and common sense, defence counsel would almost certainly not have sought a subpoena to compel Mr. Benjamin’s attendance and testimony if he did not expect Mr. Benjamin’s evidence to assist the defence. In other words, I find that Mr. Benjamin made the decision to give evidence of his own exclusive culpability here. This is not a decision Mr. Benjamin would have made unless genuinely motivated to do so for reasons that were important to him.

[72] The question I grapple with, then, is why it was important to Mr. Benjamin to offer himself up as the only person who possessed these drugs for the purpose of trafficking. In my view, his motivation for testifying as he did is relevant to assessing his credibility. Did he testify as he did because he truly was the only person who had knowledge and control, and he did not want to allow Mr. Godelia to be wrongly convicted and imprisoned for his offence against the backdrop of his own past imprisonment for an offence he did not commit? Or was it because, having invoked the protections of s. 5 of the Canada Evidence Act (“CEA”) and s. 13 of the Charter, Mr. Benjamin felt he could lie to the Court by falsely implicating himself and exculpating Mr. Godelia with impunity?

[73] I have already noted that Mr. Benjamin’s stated reason for testifying as he did impressed me as compelling. I also note that, without other evidence of a motive for testifying falsely, a witness’s knowledge of s. 13 of the Charter and/or s. 5 of the CEA has been held to have little or no probative value in relation to their credibility: R. v. Jabarianha, 2001 SCC 75 at para. 26. In this case, it could be inferred that Mr. Benjamin had a motive to testify falsely because he and Mr. Godelia were friends, and he may have been trying to help his friend. However, uncontested evidence revealed that Mr. Benjamin and Mr. Godelia had had a break in their relationship in October 2019 and had not been in contact since that time. As a result, the evidence does not permit me to find that Mr. Benjamin had a specific motive to testify falsely, whether arising from friendship and a desire to help his friend Mr. Godelia, or for some other reason. I cannot infer from Mr. Benjamin’s knowledge and invocation of s. 5 of the CEA and s. 13 of the Charter that he was motivated to lie.

[74] In sum, I am unable to determine why Mr. Benjamin offered himself up as the only guilty party here. It might be thought that finding his stated reason for testifying to be compelling and sincere should compel a conclusion that it was also true; that is, a conclusion that Mr. Benjamin was in fact the only guilty party, and that Mr. Godelia was in fact not guilty. But that is not my conclusion. I find myself unable to conclude that Mr. Benjamin’s stated reason for testifying or what he testified to were true. Because I found Mr. Benjamin to be such a generally difficult and challenging witness (for the reasons explained above), and because of specific problems with his evidence (which I will discuss further below), I am not able to conclude that his evidence that he alone was responsible for this offence was true. To paraphrase the Alberta Court of Appeal in R. v. Chan (1989), 1989 ABCA 284, 52 CCC (3d) 184 (Alta. C.A.), I am not able to accept or reject Mr. Benjamin’s total exculpation of Mr. Godelia as a “black and white” decision. Rather, I find myself in the “grey area” of reasonable doubt.

[75] As noted, there were specific concerns arising from the content of Mr. Benjamin’s evidence. The Crown submitted that I should disbelieve Mr. Benjamin and not be left in reasonable doubt by his evidence. This, they said, was because Mr. Benjamin’s evidence was fluid and changing; that he exaggerated and minimized to achieve his objective of exculpating Mr. Godelia and inculpating himself (without inculpating himself too much); and that some of his evidence simply did not make sense. Here are some examples of this, how I have analyzed them, and why on the whole of the evidence I do not accept Mr. Benjamin’s evidence but am left in a state of reasonable doubt by it:

• Mr. Benjamin’s evidence was that, although he did not pay rent at Frederick Tisdale, he would sometimes sleep in the bedroom even when that meant displacing Mr. Godelia, who was paying rent. The Crown argued that this did not make sense. A person who was not paying rent would not normally trump the bed access and use of someone who was paying rent. The Crown further argued that this signaled that Mr. Benjamin was trying to minimize Mr. Godelia’s occupancy of the room where the drugs were found, and exaggerate his own occupancy of that room. The Crown urged me to find that Mr. Benjamin’s evidence on this point was false, and that the bedroom was Mr. Godelia’s. I agree that it is counter-intuitive for a person who is not paying rent to effectively bump a person who is paying out of their room and bed. However, the uncontested evidence was that this house was something of a party house. Mr. Benjamin testified that there were many people, more than ten people every day, coming in and out of the house. This evidence was confirmed by the number of different people police officers observed going in and out of 168 Frederick Tisdale, and by the various cars they witnessed driving up to and leaving that address. In addition, there was evidence that the residents did not keep the regular hours one might expect of people working 9 – 5 jobs. For example, on November 5, 2018, surveillance officers saw Mr. Godelia leaving Frederick Tisdale at 8:53 p.m. to go to another residential address, and then on to the Keg restaurant. He exited the Keg after 1 in the morning on November 6^th. While I find Mr. Benjamin’s evidence that he would oust Mr. Godelia from the shared room unlikely, I am not able to reject it entirely on all the evidence in this case. I find it is reasonably possible that Mr. Benjamin sleep in the bedroom when Mr. Godelia was out late or up partying with others in the house;
• Mr. Benjamin testified that he asked for, and was given, exclusive use of, and access to, the safe. The Crown submitted that as a matter of logic and common sense, Mr. Godelia would not do that without knowing the uses to which Mr. Benjamin planned to put the safe. I agree that most people would not allow their safe to be used without knowing what it was being used for. Especially not if that use were exclusive by another person, in a room the safe owner was still sharing. That having been said, Mr. Benjamin’s evidence was that he told Mr. Godelia that he wanted to use the safe to keep his private documents, including CAS papers relating to his daughter, away from all the people who were in and out of the townhouse. I find it possible that Mr. Godelia would have given exclusive safe use and access to Mr. Benjamin on the strength of this explanation;
• Mr. Benjamin testified that he had to leave 168 Frederick Tisdale on November 5^th when Mr. Godelia left because he had had an argument with one of the other roommates. The Crown submitted that this evidence was inconsistent with Mr. Benjamin’s evidence that he was ordinarily living at the townhouse: a person who was ordinarily resident would not have to leave just because they had argued with another ordinary resident. While I agree that two people who were both paying rent might well both stay in their shared home after an argument, this is not always the case. Family law is replete with examples of one partner vacating premises in which they are equally entitled to reside after an argument. Moreover, Mr. Benjamin acknowledged he was not paying rent. He did not have a claim to the premises that was equal to that of the rent-paying roommates. He was there as a favour from Mr. Godelia. In these circumstances, Mr. Benjamin might reasonably have been sharing Mr. Godelia’s room on the terms he described, and still vacated the premises after a fight with one of the other roommates at Mr. Godelia’s request;
• The Crown suggested that if Mr. Benjamin’s evidence were true that he was waiting for a fully licensed driver to move the fentanyl/carfentanil, he would have moved the drugs the night of November 5^th when he had a friend with him who could do the driving. This submission relies on facts that are not in evidence. There is no evidence as to the identity of the person police observed with Mr. Benjamin that night, or whether that person was a licensed driver. Further, Mr. Benjamin’s evidence was that he spent that night with his child and the child’s mother. It stands to reason that Mr. Benjamin would not have wanted to take the drugs with him from Frederick Tisdale that night if to do so meant bringing dangerous illegal drugs into the home of his child;
• The Crown submitted that police evidence from the search was inconsistent with Mr. Benjamin’s testimony that he had some of his clothing in the walk-in closet. Mr. Benjamin said that he typically wore pants size 36 or 24 waist and 36 length and shoes sized 10 to 11. Two photographs from the execution of the search warrant depict pants found in the walk-in closet that were waist 34, length 32 (Exhibit #3, photo 57) and a shoes box for shoes size 9 ½ (Exhibit #3, photo #55). While I accept that the clothing depicted in these photos were not in Mr. Benjamin’s size, I cannot conclude from them that he had no clothing in that closet. These were but two items of apparel found in that closet. Photos reveal many other clothes for which we do not have sizing. It is possible that there were clothes in Mr. Benjamin’s size in that closet that were not photographed. In addition, Mr. Benjamin explained that he often had his clothing altered. Finally, he did acknowledge that Mr. Godelia had apparel in that closet alongside his own;
• The Crown asked me to infer that Mr. Benjamin could not have been telling the truth because he testified that he thought the drug was cocaine, when in fact it was fentanyl/carfentanil. This powdered substance was cream coloured when, the Crown submitted, cocaine is white. Crown counsel submitted that as a drug dealer who had convictions for trafficking and possessing cocaine, Mr. Benjamin would have known that this cream coloured drug could not be cocaine. In addition, a drug dealer would not accidentally purchase fentanyl/carfentanil thinking it was cocaine because the latter is much more expensive and valuable. He would have had to pay a higher price for this product than he would have paid had it been cocaine. I agree with these submissions. I think it is highly unlikely that an experienced cocaine dealer like Mr. Benjamin would accidentally purchase fentanyl/carfentanil, thinking it was cocaine. While I note that Det. Cstble. Doyle thought the powdered drug was cocaine or heroin based on its appearance, I do not accept that Mr. Benjamin made that mistake. I find that Mr. Benjamin was lying when he testified that he thought he had purchased and stored cocaine in the safe. He knew what drug he was dealing with based on his experience with cocaine. And that is why he gave non-responsive answers when the Crown challenged him as to the colour and the appearance of the drug. However, I think it is reasonably possible that Mr. Benjamin lied about his knowledge of the type of drug because he knew that fentanyl products are much more dangerous and are treated much more seriously in the criminal justice system than cocaine is. I have already found that Mr. Benjamin was very alive to his potential jeopardy, wary of provoking further criminal investigations or charges, and that this may well have led him to be evasive and dishonest. For this reason, I find it is reasonably possible that Mr. Benjamin’s lies about the type of drug do not necessarily mean that he lied about having purchased and stored the drug. It is a reasonable possibility that Mr. Benjamin lied about his knowledge of the type of drug while telling the truth that he purchased and stored the drugs in the safe on his own;
• The Crown submitted that as a matter of logic and common sense, Mr. Benjamin would not have exposed Mr. Godelia to the risk of having illegal drugs stored in the safe in his room without Mr. Godelia’s knowledge. A related further Crown submission is that it is unlikely that Mr. Benjamin would have left drugs of this value unattended or in the control of somebody who was unaware of their presence. The Crown put this to Mr. Benjamin in cross-examination. Mr. Benjamin steadfastly maintained that he did store the drugs in the safe without Mr. Godelia’s knowledge. I find it is possible that Mr. Godelia would expose his friend to the risks that could arise from having drugs in the safe in his room. It cannot be assumed that a career drug dealer would necessarily observe the niceties expected of law-abiding citizens, even in his friendships. Moreover, while the value of contraband can lead to an inference of knowledge in some circumstances (see R. v. Bains, 2015 ONCA 677 at para. 157), this is not an inference that must be drawn in all circumstances, particularly where contraband is well hidden (see Knight at para. 27), as it was in this case.

[76] Mr. Benjamin was a difficult witness whose evidence challenged credulity in several ways, but he was able to accurately and specifically identify where the safe was located, and to describe most of the features of the safe’s appearance. He accurately identified that the key to the safe was hidden in the bedroom. He testified to the correct weight of the drugs. Mr. Benjamin may have been coached on these points by Mr. Godelia in the 11 months post-charge that the two men were still in contact with each other. Or he may have been assisted by his counsel who had access to the disclosure. But it is also reasonably possible that he knew these details because he was the person who bought the drugs, stored them in the safe, and hid the key.

[77] For all of the above reasons, overall, I do not believe Mr. Benjamin’s evidence, but I am left in a state of reasonable doubt by it. His story was quite possibly untrue, but it was not, to use the language of Villaroman, “irrational or fanciful.” It was reasonably possible. The Crown has therefore not proven beyond a reasonable doubt that Mr. Godelia had knowledge and control of the fentanyl/carfentanil mixture in this case.

D. The Crown’s Circumstantial Evidence

[78] I note, for completeness, that I am left in a state of reasonable doubt after careful consideration of all the evidence in this case, including the cumulative effect of the circumstantial evidence called by the Crown. In assessing whether the Crown has proven knowledge beyond a reasonable doubt, I accept the following primary facts:

• Mr. Godelia lived at 168 Frederick Tisdale Drive as of, at latest, September 27, 2018 when he registered that as his address with MTO. He was living there when the search warrant was executed on November 6, 2018;
• He occupied the bedroom in which the drugs were found, although I am left in reasonable doubt based on the evidence of Mr. Benjamin that he may have been one of two people who occupied that room;
• There were several documents with Mr. Godelia’s name on them that were found in the red folder in the bedroom closet. They were all dated. The most recent of them was from June 2017, approximately a year and five months before the drugs were found. Det. Cstble. Doyle testified that there were other documents in the red folder that he did not seize and that were not photographed. He testified that there was also a green folder in the bedroom closet, but he could not recall whether there were any documents in that folder. No documents from the green folder were seized or photographed. There was no evidence of any documents in that room with Mr. Godelia’s name on them that were more current than June 2017. There was no evidence of whether there were documents in that room with anyone else’s name on them;
• Mr. Godelia was not the registered owner of the Mercedes Benz licence plate BYHA 273, but he was observed driving it, riding in it as a passenger, and placing a duffle bag in and out of it in the days leading up to the police search on November 6, 2021;
• Police officers were able to open the Mercedes with a key. However, I am not able to determine on the evidence before me whether the Mercedes key was on Mr. Godelia’s person along with his key to 168 Frederick Tisdale when he was arrested, or whether the key was found in the residence;
• A parking ticket for the Mercedes dated July 28, 2017 was found in the plastic three-drawer container in the closet of the bedroom, in the same drawer as the keys that opened the safe where the drugs were found. There was no name on the ticket. I cannot determine who was driving the car when it was ticketed. Nor can I determine when the ticket, that was three and a half months old at the time of the search, was placed into the drawer. Or by whom. It also cannot be known when the ticket was placed in the drawer relative to when the safe keys were placed in the drawer;
• The closet where the drugs were found contained men’s clothing. The one pair of pants and one shoe box whose sizes were in evidence were not the sizes Mr. Benjamin testified he wore. There was a lot of other men’s clothing in that closet. There was no evidence of sizes of other clothes or shoes in the closet;
• The drugs were locked in the safe and were not visible;
• The key to the safe was in a drawer in the closet and was not visible;
• The drugs were of considerable value;
• There was no evidence that Mr. Godelia’s, or Mr. Benjamin’s, fingerprints were found on the drug packaging;
• There were two digital scales found in plain view, in the same closet as the drugs. The Crown submitted that digital scales are commonly used as tools of the drug trade. There was no evidence of whether the digital scales were working. There was no evidence that Mr. Godelia’s, or Mr. Benjamin’s, fingerprints were found on the scales. There was also no evidence that the scales were tested for or contained drug residue; and
• Mr. Benjamin was at 168 Frederick Tisdale on the evenings of November 4 and 5, 2018.

[79] It is well-established that “tenancy or occupancy of a place where an object is found does not create a presumption of possession”: R. v. Choudhury, 2021 ONCA 560 at para. 19. In this case, however, the Crown’s circumstantial case evidences more than mere tenancy or occupancy. There were two digital scales in plain view. There were some personal papers of Mr. Godelia’s in the same closet as the drugs, as well as a parking ticket for a car that he used in the same drawer as the keys to the safe where the drugs were being stored. In R v. Emes (2001), 157 C.C.C. (3d) 124 (Ont. C.A.) at para. 8, the Court of Appeal for Ontario upheld the trial judge’s finding that “[p]ersonal papers are, as a general rule, maintained in a location to which a person has access and control.”

[80] Overall, the circumstantial evidence in this case makes available the inference that Mr. Godelia had knowledge and control of the drugs hidden in the safe, whether on his own, jointly, or constructively. But I must consider whether this is the only reasonable inference available on all of the evidence in this case.

[81] There are a number of shortcomings in the Crown’s circumstantial evidence: how dated the documents with Mr. Godelia’s name on them were; the inability to conclude that Mr. Godelia was the person operating the Mercedes when it was ticketed or that the same person put the ticket and the safe keys in the drawer; the absence of evidence that the scales were used for drugs or by whom; and so on. In Emes at para. 8, the Court of Appeal quoted the trial judge’s holding that “the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned” and upheld his finding that “such explanations do not . . . accord with the factual probabilities of the circumstances” in that case. As a result, in Emes, the defendant’s knowledge and control were the only reasonable inference available on the circumstantial evidence. I conclude that the same cannot be said in this case. Here it is possible that Mr. Godelia’s old papers were simply stored in a shared closet. It is possible that he, or someone else, threw the parking ticket in the drawer when they got it, months before the safe keys were stored in the same drawer by Mr. Benjamin. It is a reasonable possibility that the closet was used by Mr. Benjamin for purposes of which Mr. Godelia was not aware.

[82] Considering all of the evidence here - all of the circumstantial evidence considered cumulatively, including its shortcomings, alongside the evidence of Mr. Benjamin - I am unable to say that the only reasonable inference is that Mr. Godelia had knowledge and control over the fentanyl/carfentanil mixture. The defence position that Mr. Benjamin had exclusive possession of the drugs is, to use the language of Villaroman, a ‘plausible theory.’ After considering all of the evidence, I am left with a reasonable doubt.

[83] To be clear, that reasonable doubt exists as to personal, constructive, and joint possession by Mr. Godelia. As noted above at para. 60, all three forms of possession recognized in s. 4(3) of the Criminal Code, adopted by s. 2 of the CDSA as interpreted by the case law, require knowledge and control. Joint possession additionally requires consent (s. 4(3)(b) of the Code). I am left in a state of reasonable doubt by Mr. Benjamin’s evidence, including his evidence that Mr. Godelia did not know about the drugs, and did not have access to the safe where the drugs were stored. As a result, the Crown has not proven knowledge, control, or consent beyond a reasonable doubt. I am not satisfied to the requisite standard that Mr. Godelia was in personal, constructive, or joint possession.

(i) DISPOSITION

[84] For the foregoing reasons, I find that the Crown has not proven guilt beyond a reasonable doubt. Mr. Godelia is found not guilty.

Jill R. Presser J.

Released: November 12, 2021