Court File and Parties

COURT FILE NO.: CR-18-10000439-0000

DATE: 20211124

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

-and-

JABARIE CAMPBELL

Pamela Larmondin, for the Crown

Greg Leslie, for the Defendant

HEARD: September 20, 27-29, October 1, 2021

Justice J. Copeland

REASONS FOR JUDGMENT

[1] Jabarie Campbell is charged with one count of possession of cocaine for the purpose of trafficking, on or about April 7, 2017. The charge relates to approximately 99 grams of cocaine seized by police during a search of a residence pursuant to a warrant. The cocaine was found hidden behind the switch plate for an intercom in a bedroom that the prosecution alleges is associated to Mr. Campbell. The validity of the warrant was not challenged.

[2] The prosecution’s case is primarily a circumstantial one. The only issue in dispute is whether the prosecution has proven beyond a reasonable doubt that Mr. Campbell possessed the cocaine. The defence concedes that if the court finds that it is proven that Mr. Campbell possessed the cocaine, the value, quantity, and presence of a cutting agent with the cocaine would be sufficient to prove that possession was “for the purpose of trafficking”. The resolution of the issue of whether possession has been proven beyond a reasonable doubt turns on my assessment of the Crown’s circumstantial case, and of the credibility of Mr. Campbell’s evidence in accordance with the reasonable doubt standard.

Applicable law regarding the presumption of innocence, the burden of proof, possession, and circumstantial evidence

[3] I begin with the basic legal principles that apply in this case. None of these principles is in dispute between the parties.

[4] Mr. Campbell is presumed innocent unless and until the prosecution proves his guilt beyond a reasonable doubt.

[5] In order to prove possession, the prosecution must prove knowledge of the substance (of its presence, and that it was a controlled drug), and some measure of control over the substance: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15, 17; R. v. Lights, 2020 ONCA 128 at paras. 44-52; R. v. Choudhry, 2021 ONCA 560 at para. 19.

[6] Section 4(3) of the Criminal Code provides for three forms of possession. In this case the prosecution relies on a theory of constructive possession by Mr. Campbell, either alone (s. 4(3)(a)), or jointly (s. 4(3)(b)). In order to prove constructive possession, the prosecution must prove: (1) that Mr. Campbell had knowledge of the character of the substance (the cocaine); (2) that he knowingly put or kept the cocaine in a particular place, whether or not that place belongs to him; and (3) that he intended to have the cocaine in the particular place for his use or benefit or that of another person: Morelli at para. 17; Lights at paras. 44-52; Choudhry at paras. 19, 22. To the extent that the prosecution relies on a theory of joint possession, Mr. Campbell could be found to be in joint possession of the cocaine if it is proven beyond a reasonable doubt that he had knowledge of the cocaine, and had some measure of control over the cocaine: R. v. Chambers, 1985 169 (ONCA); R. v. Pham, 2002 44671 (ONCA) at paras. 15-16.

[7] The fact that a thing is found in a place occupied by a defendant does not create a presumption of knowledge and control. However, the fact that a person has control over a place, together with other evidence may (depending on the whole of the evidence) enable a trial judge to infer knowledge and control of the item in appropriate cases: Lights at para. 50; Choudhry at para. 19; R. v. Lincoln, 2012 ONCA 542 at para. 3; R. v. Watson, 2011 ONCA 437 at paras. 11-13; Pham at paras. 17-18.

[8] The prosecution case for possession is a circumstantial one. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-42, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.

[9] In considering the line between reasonable alternative inferences and speculative ones, Justice Cromwell, writing for the court, held as follows at paragraphs 37-38:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. 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”: [citation omitted]. “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.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[10] As the Court of Appeal recently reiterated in Lights, at para. 37, in assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence.

[11] Inferences consistent with innocence are not required to arise from proven facts. They may arise from a lack of evidence: Villaroman at paras. 35-36; Lights at para. 38. As the Supreme Court noted in Villaroman, this principle is consistent with the holding in R. v. Lifchus, 1997 319, [1997] 3 S.C.R. 320, that a reasonable doubt may arise from the evidence, or from a lack of evidence. But alternative inferences, whether based on the evidence or a lack of evidence, “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman at para. 36.

[12] The assessment in any given case as to whether the prosecution has proven possession beyond a reasonable doubt based on circumstantial evidence is always a very fact-driven analysis.

[13] In this case, because Mr. Campbell testified, in addition to considering principles related to circumstantial evidence and proof beyond a reasonable doubt, I must also bear in mind that the reasonable doubt standard applies to issues of credibility: R. v. W.(D.), 1991 93, [1991] 1 S.C.R. 742. If the court believes the defendant’s evidence, he must be found not guilty. If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty. Finally, even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown’s case proves the charges beyond a reasonable doubt.

[14] In assessing the evidence, the court should consider all of the evidence together, rather than assessing individual pieces of evidence in isolation. This proposition is important to bear in mind in engaging in the W.(D.) analysis. A trier of fact, in considering whether it believes the defence evidence, or is left in a reasonable doubt by the defence evidence, must not make that assessment by looking at the defence evidence in isolation. Rather, the assessment must be made by considering the defence evidence in the context of the whole of the evidence at trial. Although in my analysis I will refer to specific pieces of evidence and comment on them, I bear in mind to consider the evidence as a whole, and its cumulative effect.

[15] Finally, before turning to the evidence, I underline the nature of the prosecution’s burden of proof beyond a reasonable doubt. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that a defendant is probably guilty. However, the prosecution is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: Lifchus at para. 39.

The Evidence and admissions

[16] The basic facts in terms of what the police observed during surveillance, and what they observed and seized in their search of the home and vehicle are for the most-part not in dispute. Nor was the credibility of the evidence of the police witnesses challenged; although some issues were raised about the reliability of aspects of their evidence (although not on central issues). What is in dispute is what inferences the court can and should draw from the primary facts, and whether the inferences allow a conclusion that possession for the purpose of trafficking has been proven beyond a reasonable doubt, particularly where Mr. Campbell has testified and denied knowledge of the cocaine. For this reason, as I summarize the evidence, I will simply state my findings about what the police observed and found. I will address what inferences I draw from the police evidence in my analysis further below. Because the credibility of Mr. Campbell’s evidence is challenged by the Crown, I will briefly summarize his evidence, and then address my findings with respect to his evidence in the context of the evidence as a whole in the analysis section further below.

(i) Surveillance on April 5, 6, and 7, 2017, and arrest of Mr. Cambell on April 7, 2017

[17] The residence that was subject to surveillance and later searched with a warrant was located on Kirk Drive in Brampton. Officers of the Toronto Police Service conducted surveillance on the residence for periods of time on April 5, 6, and 7, 2017.

[18] I note at the outset, and I will return to this issue, it is common ground that Mr. Campbell is (and was in April 2017) a very heavyset man. All of the officers described him as very large. DC Aaron Smith testified that the description the officers had of Mr. Campbell prior to surveillance included that he was approximately 5’ 10” tall and weighed 362 lbs. (and I find that it was clear from all of the officers’ evidence that in their observations of Mr. Campbell, he fit that description). Mr. Campbell testified that he weighed 360 or 370 pounds in April 270, and is 5’ 10” or 5’ 11” tall. I flag this because, although the specific identification and description of some of the other unknown males observed during the surveillance varied in its specificity during the trial evidence, the officers were able to reliably say when they saw Mr. Campbell. The defence does not dispute this. The evidence was clear that none of the males observed on April 5, 6, and 7 during surveillance, who I describe as “unknown males”, were Mr. Campbell. I will not summarize the descriptions of the other unknown males as their particular descriptions are not relevant.

[19] As context for the surveillance, I will describe the exterior layout and entrances to the residence. The main front entrance to the house is on the front left of the house up a short set of stairs from street level. On the right front of the house, and further forward towards the street is an attached garage. On the front of the garage is a garage door for vehicles. On the left side of the garage is what the officers referred to as the “man-door” to the garage, that is, an ordinary door for people, not cars. The man-door is closer towards the street than the main door to the house (but within view of the main door to the house, separated by in the range of 10 to 15 feet). In addition, I note that if a person enters the garage, inside the garage are stairs down to the basement, and up to the main floor of the house.

[20] On April 5, 2017, officers conducted surveillance from 11:44 a.m. to 5:22 p.m. The intention was to confirm that Mr. Campbell lived at the Kirk Drive address. Applications for search warrants were in preparation on April 5, 2017 for the Kirk Drive house and for a Nissan Rogue registered to Andrew O’Neil at that address (Mr. Campbell gave evidence that Mr. O’Neil is his brother).

[21] At 1:43 p.m., an unknown male exited the residence and entered the Nissan Rogue and left the area. At 1:51 p.m., the Nissan Rogue arrived back, and the same unknown male went back into the residence.

[22] At 2:07 p.m., the same unknown male left the residence through the garage man-door, and entered the Nissan Rogue, and drove away. At 2:14 p.m., the same unknown male returned in the Nissan Rogue and went back into the residence.

[23] At 3:48 p.m., a newer model Hyundai Sonata arrived at the residence. A second unknown male (not the same male who was in the Nissan earlier) exited the Sonata and entered the house through the main door.

[24] At 4:00 the two unknown males mentioned in the preceding paragraphs left the house through the garage man-door along with a third unknown male and an unknown female. DC Smith agreed in cross-examination that the officers had not seen that third unknown male or the unknown female enter the house during the time they had been conducting surveillance from 11:44 a.m. that morning (i.e. it is unknown when the third unknown male or the unknown female arrived at the house, but it was before 11:44 a.m.).

[25] At 4:02 p.m., Mr. Campbell was observed by police exiting the man-door of the garage.

[26] The second unknown male got into the driver’s seat of the Hyundai Sonata. The first unknown male got into the driver’s seat of the Nissan Rogue. Mr. Campbell, the third unknown male, and the unknown female were passengers in the Nissan Rogue. Both vehicles left the area together. The surveillance team followed the vehicles from the residence. Both vehicles went to a service station. The unknown male driving the Hyundai Sonata got gas for the Sonata. The Nissan Rogue waited in the parking lot of the service station. Both vehicles then left the service station together. At 4:25 p.m. the officers lost track of both vehicles. The surveillance team went back to the Kirk Drive address to continue surveillance. No observations of note were made. At 5:22 p.m. the team was relieved by another surveillance team. No evidence was led at trial from officers on the other surveillance team.

[27] On April 6, 2017, a search warrant for the Kirk Drive address had been issued, as well as for a Nissan Rogue registered to Mr. O’Neil. The police intended to conduct surveillance of the residence, and if they saw Mr. Campbell, to arrest him, and then execute the search warrants.

[28] Officers conducted surveillance at the residence from 11:12 a.m. to 5:35 p.m. on April 6. However, they did not observe Mr. Campbell at any point that day. As a result they did not execute the search warrants that day.

[29] Although officers did not observe Mr. Campbell at the residence on April 6, 2017, they once again observed several other unknown people (mostly males) coming and going from the residence.

[30] At 1:05 p.m. an unknown male arrived at the residence in a black Honda Accord. He entered the residence through the man-door of the garage.

[31] At 3:16 p.m., an unknown female left the residence with the male who had arrived earlier in the black Honda Accord, and a second unknown male. The three of them boarded the Honda Accord.[^1] The male who had arrived in the Honda was driving. The officers who were asked about it agreed that they had not seen the second unknown male or the unknown female arrive at the home, so they did not know how long they had been there.

[32] At 3:23 p.m., two females left the house with a child, and returned shortly after with a second child (it was common ground, given the time of day, and presence of children, that this appeared to be picking the second child up from school).

[33] At 3:30 p.m., the female and two unknown males who had left in the Honda Accord at 3:30 p.m. returned to the residence. They all entered the residence through the man-door to the garage. DC Taylor agreed in cross-examination that he had not made a note of them having any trouble getting into the house, and agreed that he would have made a note if they had.

[34] At 5:16 p.m. the unknown male who had earlier arrived driving the Honda Accord exited the residence through the garage man-door, got into the Honda, and left.

[35] On April 7, 2017, police began surveillance of the residence at approximately 11:30 a.m. As with the previous day, their intention was that if they saw Mr. Campbell, they would arrest him, and then execute the search warrants.

[36] At 12:32 p.m., officers observed two unknown males exit the residence through the garage man-door. One of the males had a cigarette, and then went back inside. The second male appeared to be unable to get back in through the garage man-door. Officers observed him speak on his phone, and then walk to the front door and enter (as if someone let him in the front door). In cross-examination, DC Taylor agreed that officers had not seen either of those unknown males arrive at the house during the time the police had been conducting surveillance that day, so they did not know how long those two unknown males had been at the residence.

[37] Officers agreed in cross-examination that (as one could deduce as a matter of common sense), that when the various unknown people were inside the residence on April 5, 6, and 7, the officers were not able to tell where in the house they were, or what they were doing.

[38] I note as well that the officers were not able to say if the any unknown males on April 5, 6, and 7 were the same people from one day to the next, or if they were different people. The numbering system the officers used in their notes would restart each day, and based on their memories the officers could not say if it was the same unknown males each day.

[39] At 12:39 p.m. on April 7, Mr. Campbell exited the residence with either three or four other males. There was some variance among the police witnesses as to whether it was three or for other males. It is not necessary that I resolve this issue to decide this case. One of the unknown males was the male who had had a cigarette outside at 12:32 p.m. Officers were unable to say if the second male from 12:32 was among the three or four men who exited with Mr. Campbell.

[40] Mr. Campbell walked towards a Chevy Equinox parked on the street, and began to take out his keys. At that point the takedown was called. As Mr. Campbell exited, DC Andrew Campbell, one of the officers doing surveillance, approached Mr. Campbell to arrest him. DC Campbell was in an unmarked vehicle for surveillance, but turned on the police lights in the vehicle when he approached to make the arrest. As other officers approached the residence they were yelling, “Police”, and at least some of the officers were wearing vests labelled “Police”.

[41] Mr. Campbell was very cooperative and submitted to the arrest. Because Mr. Campbell was so large, DC Campbell was unable to handcuff him to the rear with one set of cuffs. Mr. Campbell was unable to put his arms close enough together at the back. Ultimately DC Campbell was able to cuff Mr. Campbell by attaching two sets of cuffs together.

[42] Mr. Campbell was searched incident to arrest, and the following items were found in his pants pocket: a white iPhone, a key fob for the Chevy Equinox, a chapstick, and an Ontario driver’s licence in his name. DC Campbell testified in cross-examination that he did not check the size of the track pants that Mr. Campbell was wearing at the time of the arrest, but he recalled that his clothes were tight.

[43] As the takedown was called and the arrest of Mr. Campbell was made, the three or four other males who had exited the house with him ran back into house. DC Smith and DC Campbell testified that the males ran in through the garage man-door. DC Taylor testified that he believed they went through the main door. In light of DC Smith’s evidence about breaching the main door, and how quickly he was at the door, I accept his and DC Campbell’s evidence, and find that the unknown males ran into the house through the garage man-door. None of the officers could say who the unknown males who ran were, or if Mr. O’Neil was one of them. The officers who were asked also agreed that they had not seen the three or four men who ran arrive at the house during the surveillance on April 7. Because of this, they were not able to say how long those men had been in the house, other than that it was since before 11:30 a.m. on April 7.

[44] DC Aaron Smith, another officer doing surveillance, ran to the main door of the house. From outside the door, he could hear a commotion in the house. In cross-examination he described it as running, stomping, yelling, a major commotion inside the house. It sounded like people running through the main floor of the house. Based on that, DC Smith decided to breach the door, and he entered the house. At the rear of the house, he saw that the sliding back door (adjacent to the kitchen) was wide open, and the curtains were blowing in the wind. DC Smith testified that this was unusual, because it was April, and the weather was cold.

[45] DC Smith went out the back door to look for the men who fled, but did not see anyone. The backyard of the residence faces a park on one side, and there is only a very low fence between the backyard and the park (about three feet high). DC Smith also did not see anyone in the park. DC Smith saw shoe prints in the mud by the door which looked to him like someone slipping and running (the ground was wet because it had rained at some point earlier). Other officers were in the house quickly after DC Smith.

[46] Inside the house were Marcia Campbell (Mr. Campbell’s mother), and two young boys (in the range of four or five years old). The three or four men who had fled into the garage were not in the house.

[47] After the house was cleared, police searched the residence and the Nissan Rogue.

(ii) Execution of the search warrants on April 7, 2017

[48] Before summarizing the relevant aspects of the search evidence, I will briefly describe the layout of interior of the house. The main floor has a living and dining area at the front, and a kitchen at the back with a family room area attached. I will not describe it in more detail, as nothing of evidentiary value was found there. The second floor has four bedrooms: a main bedroom with an ensuite bathroom (it was common ground that this was Marcia Campbell’s bedroom), a bedroom that appeared from its contents to be a room belonging to a child or children, a bedroom that from its contents and decor appeared to belong to a young woman, and a bedroom at the top of the stairs. It is the bedroom at the top of the stairs that the prosecution alleges is associated to Mr. Campbell. That is the bedroom where the cocaine was found. In addition, there is a washroom in the hall on the second floor. The officers testified that the hall washroom was obviously under renovation and unusable at the time of the search, and this is supported by photos (the toilet was not installed and was in the hallway). In the basement there are two bedrooms, a bathroom, a room (sort of an open area) with a desk and a fridge, and a storage area under the stairs. There was an opening in the wall (like a window, but without glass) on the wall between the second bedroom and the room with the desk and fridge. The basement has stairs that go up to the house, and a second set of stairs that go up to the garage.

[49] DC Smith searched the main bedroom and ensuite bathroom on the second floor, the hall bathroom on the second floor, the bedroom that appeared from its contents to belong to a child or children, and the bedroom that appeared from its decor and contents to belong to a young woman. Nothing of evidentiary value was found in those locations.

[50] DC Smith then searched the bedroom at the top of the stairs that the prosecution alleges is associated to Mr. Campbell. DC Taylor testified that the door to that bedroom was open when the police arrived inside the residence. He also testified that he did not note any lock for the door.

[51] On a shelf in the closet, in an oversized novelty Coca-Cola can, DC Smith found identification and documents in the name of Mr. Campbell. DC Smith testified that there were 13 documents in Mr. Campbell’s name located in that bedroom. Photos of these items are included in the exhibit book of items seized. I note that to the extent dates are visible on the documents, they were not recently dated documents at the date of the search (April 7, 2017):

• an Ontario Trillium benefit statement dated February 10, 2014;

• an Ontario government notice of some kind (the top is cut off in the exhibit copy) dated January 9, 2015;

• an Ontario Ministry of Health drug benefit eligibility card with a benefit period from November 1, 2016 to the end of November 2016;

• a MasterCard with an expiry date of “03/17” (which still has the sticker on it with the number to call for activation);

• a TDSB student information “Index card” from Westview Centennial Secondary School dated September 17, 2007;

• a certificate from a course at secondary school dated December 2006;

• a middle school graduation certificate from Brookview Middle School dated June 23, 2004;

• a resume with no date (and based on the content one can only infer that it is from some time after 2012);

• a school photo of Mr. Campbell which, judging from his appearance age-wise in the photo, was likely taken in middle school (Mr. Campbell was 26 years old in April 2017).

• There were also a few pieces of correspondence in envelopes, which I do not list individually, because one cannot tell the dates from the photos in evidence.

[52] The most recent among these documents is the drug benefit eligibility card with the benefit period November 1, 2016 to the end of November 2016 – four to five months prior to the offence date. With respect to the credit card with the expiry date of “03/17”, I take notice that credit cards are issues some number of years prior to the expiry date (in my own experience, at least two years prior, sometimes more. But I do not take notice of the specific number of years earlier).

[53] DC Smith testified that the clothes in the closet were very large sizes. In cross-examination, he testified that the labels he checked on the clothes in the closet were noted in his notebook as size 2XL shirts, and size 40 waist pants. Photos of a pair of jeans with a “40” tag at the waist, and a shirt with a 2XL tag were included in the exhibit book with photos of the items seized. DC Smith also testified about three logoed T-shirts (it was unclear to me if these were in the closet or elsewhere in the room). He did not check the size labels on these, but testified that based on their physical size they were at least 2XL.

[54] Apart from the documents in the closet in Mr. Campbell’s name, and the large clothes in the closet, DC Smith found nothing of evidentiary value in his initial search of the room. When he was mostly completed the search, he stopped, and looked around the room to see if anything looked unusual. When he did that he noticed that for all of the switch plates in the room on plugs and light switches it looked like the switch plates had not been removed the last time the room was painted, because the switch plates had paint on the edges or paint dripped on them. He noticed that the switch plate for an intercom by the door of the room was not like this – the edges of that switch plate did not have paint on them. Based on these observations, he pulled on the intercom switch plate, and found it was wobbly. He testified that it took “a reasonable amount of force” to pull it out, but that it was not a struggle to pull it out. DC Smith agreed in cross-examination that as he pulled off the intercom cover, the cover broke in half. He agreed that the intercom cover did not look broken before he removed it.

[55] In cross-examination, DC Smith agreed that initially he had not seen any difference between the intercom switch plate and the other switch plates in the room. He agreed that he was in the room for the purpose of searching for drugs, including looking for hiding places, and that he had done many drug searches prior to that day. He agreed that despite his experience and that purpose, he still had almost completed his search and had not noticed anything unusual about the intercom switch plate.

[56] No photos were taken of the intercom switch plate before it was removed. Nor were photos taken of the other switch plates in the room. In the pre-search video, one can at one point see a plug across from the bed, but it is from such a distance and so brief that it is not possible to see the paint around the edges that DC Smith testified to. There is no video of the intercom switch plate in the pre-search video. The only photo of the intercom switch plate is after it has already been removed from the wall. It is shown hanging from some wires, and apparently broken in half.

[57] When DC Smith pulled off the intercom cover, he could see there was a “void” in the wall behind it. He could not see into the space behind the wall once he had removed the intercom switch plate, so reached in with the camera on his phone and took photos. Behind the wall was a white sock with something in it hanging on a nail.

[58] DC Smith removed the sock. He emptied out the contents of the sock. Inside were two bags. One contained a white rock-like substance. The other contained a white powdery substance. The rock-like substance was in a piece of brown paper bag inside a clear plastic bag. DC Smith testified that the brown paper bag appeared wet. The substances later were tested by Health Canada. The results of that testing were that one package was approximately 99 grams of cocaine, and the other was approximately 105 grams of phenacetin, a cutting agent.

[59] DC Smith testified that the intercom panel was not checked for fingerprints or DNA. The bags that the cocaine and the phenacetin were found in were sent to be checked for fingerprints or DNA. DC Campbell, the only officer who was asked about the bags being sent for testing, said he was not aware of the results.

[60] No drug paraphernalia was found in the room at the top of the stairs where the cocaine was found behind the intercom.

[61] DC Smith testified that he did not remove the intercom panels in any of the other rooms to check behind them.

[62] DC Taylor searched a bedroom in the basement which appeared to be associated to Mr. O’Neil. That room had a bed in it, and a closet. It also had a video gaming system. There were many framed photos. DC Taylor searched the clothing in the closet, which included pants, shirts, T-shirts, hoodies. He testified although he did not check the tags for sizes, the clothes in the closet in that room were “average” size, and would not have fit Mr. Campbell. There were also clothes in the laundry hamper in that room. Again, DC Taylor did not check the sizes on the tags, but he testified that they were a size that would not have fit Mr. Campbell.

[63] Also in the basement bedroom associated to Mr. O’Neil, DC Taylor found a wallet under the pillows on the bed with various pieces of identification in the name of Andrew O’Neil. Among the identification found was a driver’s licence in the name of Andrew O’Neil with the Kirk Drive address, as well as an Ontario health card and various bank cards/credit cards in Mr. O’Neil’s name. Also found in that bedroom were other documents in the name of Andrew O’Neil. A Canadian passport in the name of Andrew O’Neil was found on a shelf in the closet in that room.

[64] In addition, in the room associated to Mr. O’Neil, DC Taylor found $9,000 in cash, a scale (which he testified to in cross-examination when asked if there was any drug paraphernalia found in that room), and a small quantity of marijuana. In cross-examination, DC Taylor also testified that he saw two ripped pieces of garbage bags on top of a shoe box in that room (these can be seen in the pre-search video at approximately 6:26). Although not made express, I find that it was implicit in DC Taylor’s evidence that he considered these ripped pieces of bag to be possible drug paraphernalia. He gave the response about these ripped pieces of bag when asked if saw any baggies in the room, and said that he did not see “dime bags”, but saw these ripped pieces of garbage bags. Also, at the very end of his cross-examination, he was asked whether aside from the scale and the two ripped pieces of garbage bag he saw any other drug paraphernalia in that bedroom. He replied no, and he did not in any way seek to contradict the premise of the question, which was that the scale and the ripped pieces of garbage bag were drug paraphernalia.

[65] DC Campbell searched a second bedroom in the basement. DC Campbell said this room had a bed in it, a small couch or chair, and an old tube TV on a stand in it. It did not have a closet. He also described that there was a cut-out in one wall of this room through which one could see through to the room with the desk and the fridge. He described the cut-out as “almost like a snack bar”. There was also some footage of this room in the pre-search video filed as an exhibit. Nothing of evidentiary value was found in this bedroom. DC Campbell testified that he did not remember seeing any clothes or running shoes in that bedroom. In examination in chief he testified that he did not note seeing any pictures or personal items in that bedroom. However, in cross-examination, after being shown a portion of the pre-search video, he agreed that there were items on the bed in that room, but he had not made a note of what they were, and could no longer recall what they were.

[66] DC Campbell searched the room in the basement with a desk and a fridge. In examination in chief he testified that nothing of evidentiary value was found in this room. In cross-examination, he agreed that clothes were found on a piece of furniture in the hall adjacent to this room (this can be seen at approximately 4:04 on the pre-search video). He testified that he did not search those clothes or check their sizes. DC Taylor was also asked about these clothes in cross-examination. He agreed that there were clothes on a chair or a bench press in the basement hall. He testified that he did not search those clothes, and could not say what size they were.

[67] DC Taylor and DC Campbell searched the garage. Nothing of evidentiary value was found in the garage.

[68] DC Taylor and DC Campbell searched the Nissan Rogue. Nothing of evidentiary value was found. DC Taylor testified that the Nissan Rogue was registered in the name of Andrew O’Neil at the address on Kirk Drive.

(iii) Admissions in relation to drugs seized

[69] As noted above, the defence concedes that if the court finds that the prosecution has proven that Mr. Cambell possessed the cocaine, the quantity and value of the cocaine (based on expert evidence available for trial, but not led due to the admission), as well as the fact that it was found together with a cutting agent, is sufficient to prove beyond a reasonable doubt that the possession was for the purpose of trafficking. In particular, the following facts were admitted:

• that the amount of crack cocaine located behind the intercom panel, 99.08 grams, is consistent with possession for the purpose of trafficking (and on being asked clarifying questions by me, the defence agreed that if the court found possession by Mr. Campbell to be proven, they were not disputing the “for the purpose” element);

• that the 2017 price for 99.08 grams of crack cocaine would be approximately $7,900 if sold by the gram, and $4,200 if sold by the ounce;

• that phenacetin is a cutting agent used for crack cocaine.

(iv) Mr. Campbell’s evidence

[70] Mr. Campbell testified in his defence. He denied knowledge of the cocaine behind the intercom switch plate in the bedroom at the top of the stairs.

[71] Mr. Campbell testified that he lived at the Kirk Drive address in 2017 with his mother (Marcia Campbell), sister (Jahmeela Campbell), his sister’s two children, and his brother (Andrew O’Neil). His mother’s room was the main bedroom with the ensuite on the second floor. His sister had a room on the second floor, and her children had another room on the second floor. His brother Andrew O’Neil’s room was in the basement. Mr. Campbell agreed in cross-examination that his brother had a daughter, who in 2017 was 10 or 11 years old, and who would sometimes come to stay over at the Kirk Drive house

[72] Mr. Campbell testified that he has a grade 11 education. He testified that in 2017 he was a music producer. He produced “beats”. In addition, he would sometimes help with the kids of another sister who lived in Mississauga (Denise O’Neil), and sometimes stay over when he was helping with the kids. His sister did not pay him for looking after her kids, but she would give him money from time to time.

[73] Mr. Campbell testified that he had lived at the Kirk Drive house for about ten years. He testified that the room at the top of the stairs had previously been his room from the time he first moved in with his mother, but that he stopped living in that room near the end of 2016 or early 2017. He testified that he was using the bedroom in the basement that I have described above as the second bedroom. He moved to the basement at that time because they had started renovations, and both of the washrooms on the second floor were out of service. He testified that the hall washroom on the second floor had just been gutted for renovation because of leaks. He testified that the in the ensuite washroom within his mother’s bedroom you could not flush the toilet because it would leak into the first-floor powder room. The washrooms on the second floor had been out of service since January 2017. He testified that they had been doing other renovations in the house. The floors had recently been done in three rooms on the second floor. After the hallway washroom on the second floor was renovated (which was still in progress), the intention was to renovate the ensuite washroom in his mother’s room.

[74] Mr. Campbell was asked in cross-examination about his evidence that his mother’s ensuite washroom was out of service at that time. He agreed that the basement washroom was the only washroom with a working shower in April 2017. He was asked whether it was the case that everyone showered in the basement washroom. He responded that sometimes his mother and sister would boil water and bring it upstairs to wash.

[75] Mr. Campbell testified that because of his weight, it was hard for him to walk up and down the stairs to the second floor. In particular, going up the spiral staircase to the second floor left him out of breath. In the basement he had everything he used on one floor – bedroom, washroom, TV, and gaming. Mr. Campbell testified that he had a gaming system and DVD set up on the TV in the second bedroom in the basement, but that that TV did not have cable. He testified that he made his “beats” and did recording on the computer in the room in the basement with the desk. He testified that he sold “beats” for money, although he did not make a lot of money from that. He records under the name “Big Bills”.

[76] I note that there was other circumstantial evidence that supported Mr. Campbell’s evidence in relation to his recording activities in the basement. DC Smith testified that there was a computer, monitor, and speakers on the desk, and that elsewhere in the basement there was a microphone stand. DC Campbell testified that he remembered seeing speakers on the desk, but could not recall if there was a computer. In the pre-search video (at approximately 5:23) a Mac-style computer, two speakers, and another piece of computer or stereo equipment to the right of the computer are visible.

[77] Mr. Campbell testified that he kept the clothes he had in the basement on a bench press in the basement hall outside the bedroom he used. He testified that he did not keep a lot of clothes there, something like ten shirts, and three to four pairs of track pants. He testified that he also kept clothes at the home of his sister in Mississauga. He did not keep his clothes in the basement bedroom he was using because there was nowhere to put them in there (recall the officers testified that there was no closet in that room). He said he should have put his clothes in the basement hall closet near the stairs to the garage, but he just left them on the bench press. He said there were a couple of jackets in that closet, but they were not his.

[78] In cross-examination, Mr. Campbell agreed that the clothes one sees on the bench press at approximately 4:37-4:38 in the pre-search video (also visible at 4:04 on the pre-search video) were all the clothes he kept in the Kirk Drive house. He agreed that the clothes on the bench press were his clean clothes. He was asked where his dirty clothes were located. He said he would wash his clothes pretty right away, because he did not have a lot of clothes.

[79] Mr. Campbell was asked in cross-examination about some aspects of the basement room he said he had been living in for since December 2016 or January 2017 (using the pre-search video). He said the bed was a double bed. He said the chair was a single chair. It was suggested to him that there were no sheets on the bed. He disagreed. He said that there was a zebra print sheet and a comforter on top. Mr. Campbell was asked in cross-examination about the apparent absence of pillows on that bed in the pre-search video (using a still from 4:43, exhibit #7). He testified that they were on the floor in the area at the top right of the photo in exhibit #7, and that he had not put the pillows back on the bed when he put the mattress back on on the morning of April 7 (see para. 103 below regarding separating the mattress and box spring to make a place for Mr. Mahdale to sleep). I have reviewed the pre-search video of that bedroom, and at 5:10 one can see pillows on the floor in the area Mr. Campbell referred to in his response.

[80] Mr. Campbell testified that once he moved to the basement, if he needed anything from his old room upstairs, he would ask his mother or sister to bring it to him.

[81] Mr. Campbell agreed in cross-examination that he did not keep any documents in the basement bedroom.

[82] Mr. Campbell testified that after he moved to the basement, his old room at the top of the stairs on the second floor was used as a guest room. If people came over and had a few drinks and did not want to drive, they could “crash” there.

[83] Mr. Campbell testified that the door to that bedroom had a lock in the doorknob, but that the lock had not been working for a long time.

[84] Mr. Campbell agreed in cross-examination that he had keys to the Kirk Drive house. He agreed that he could come and go from the house as he pleased. He agreed that he could control when friends came into the house or not. He agreed he could say yes or no to whether friends came to the house, and could kick friends out if he wanted to do so.

[85] Mr. Campbell agreed in cross-examination that the other bedroom in the basement with the framed photos in it was his brother Andrew O’Neil’s room, and that all the items in it were his brother’s.

[86] Mr. Campbell testified that he is 5’ 10” or 5’ 11” tall, and weighed approximately 370-375 pounds in April 2017. He testified that he had always been large. He testified that the waist size for pants that he wore in 2017 was between 48 to 52-inch waist (i.e., 48, 50, or 52). He testified that in tops he wore 3XL or 4XL.

[87] In relation to the clothes found in the upstairs bedroom, Mr. Cambell testified that in April 2017 there is no way he could fit into size 40 pants. He testified that the last time he could have fit into size 40 pants was in his early teen years. He also testified that in spring 2017, he usually wore track pants or other stretchy pants. He said he would wear jeans “once in a blue moon”. He preferred track pants because they were more comfortable. He testified that the size 40 pants found in the upstairs bedroom were not his pants, and that he did not know whose pants were.

[88] Regarding the identification and documents in his name found in the upstairs bedroom, Mr. Campbell testified that he left some pay stubs and old documents in a Coca-Cola can on the shelf in the closet in that bedroom. When he moved to the basement, he just left the documents there because they were old documents.

[89] Mr. Campbell testified that he had never used the intercom system in the Kirk Drive house because when his mother bought the house, the previous owner told her that it did not work. Because of this he had no reason to use the intercom in the bedroom at the top of the stairs on the second floor when he used that room in the past. He testified that he never noticed anything odd about the intercom in the bedroom at the top of the stairs on the second floor (i.e., the room where the cocaine was found). He had never tried to pull the cover of the intercom. He did not know there was a hole behind the intercom.

[90] In cross-examination, Mr. Campbell was asked when the bedroom on the second floor at the top of the stairs had last been painted. He said he was not sure, but that it would have been after January 2017, because when he lived in that room, it was blue (in the pre-search video, that room has light brown walls).

[91] Mr. Campbell testified that he was not aware that there was crack cocaine and phenacetin hidden in the wall behind the intercom panel.

[92] Mr. Campbell denied the suggestions put to him in cross-examination that he had never moved out of the second-floor bedroom, that it was his clothing in that bedroom, and that the cocaine behind the intercom was his. He also denied the suggestion that one of the other men at the house brought the cocaine and gave it to him.

[93] Mr. Campbell testified that in April 2017, friends of his brother Mr. O’Neil would sometimes stay at the Kirk Drive house – Mahdale Mahdale, Allan Creighton, and Trayquil Skene. He testified that Mr. Mahdale is also his brother in law, but did not explain the relationship more than that. Mr. Campbell said he knew these men too and they were also his friends.

[94] Mr. Campbell testified that in April 2017, his brother Mr. O’Neil was usually at the Kirk Drive house six days a week. He also testified that Mr. O’Neil would use his old bedroom upstairs (i.e., the room where the cocaine was found behind the intercom) sometimes when Mr. Campbell was in the basement working on his beats, because it would be loud in the basement. He testified that in the winter/spring of 2017, he would make beats in the basement four or five times a week.

[95] Mr. Campbell testified that the friends of his brother referred to in paragraph 93 would often be at the house five times a week. Mr. Campbell testified that both Mr. Mahdale and Mr. Creighton would stay over from time to time in the bedroom upstairs (where the cocaine was found). He testified that Mr. Creighton, Mr. Mahdale, his brother Mr. O’Neil, and his sister Jahmeela would have access to that bedroom all the time, four or five times a week. However, he testified that when Mr. Skene was over, he would stay in the basement. He also said that Mr. Skene was not over at the house as often as the others.

[96] Mr. Campbell testified that his brother Andrew O’Neil has a medium build, and probably wears an XL size shirt. He did not know his brother’s pant size. He described Mr. Mahdale as “a big guy” but not as big as himself. He did not know Mr. Mahdale’s pant size.

[97] Mr. Campbell testified that the men doing the renovations on the house were at the house three or four times a week in the spring of 2017 (he named three of them by first name, but said there were more than three).

[98] Mr. Campbell testified that on the morning of April 7, 2017, four other men were at the house – his brother Mr. O’Neil, Mr. Mahdale, Mr. Skene, and Mr. Creighton. He testified that his brother Mr. O’Neil had been in this house the whole time that week. He testified that Mr. Mahdale had been at the house every day for the two weeks prior to April 7. He said Mr. Skene had been at the house twice in the week prior to April 7. He said Mr. Creighton lived up the street and was coming by the house daily in that time period.

[99] In cross-examination, Mr. Campbell testified that the previous evening they were drinking in the area of the basement with the desk and the computer, and he was playing beats on the computer. Mr. Campbell testified that he was sitting at the desk. He was asked where Mr. Mahdale was sitting, and responded that he did not know. He said he was focussed on making the beats. He said the others were walking around, or on their phones, drinking, and smoking. At some point later in the night they ordered pizza. Later in cross-examination when he was asked where everyone was when they were hanging out on the night of April 6, he reiterated that he was seated at the desk. He said Mr. Skene was in the smaller chair by the desk. He said Mr. Mahdale was in the chair in the second bedroom, and Mr. Creighton was also in that bedroom on the bed (recall the cut-out window pass through between that bedroom and the room with the desk and fridge). He agreed that there was not a lot of room in the room with the desk. He said people would come in and stand up, and then go back into the other room.

[100] In cross-examination, Mr. Campbell said that at some point before the pizza came, his brother Mr. O’Neil went upstairs to lie down. He assumed that Mr. O’Neil went to Mr. Campbell’s old room at the top of the stairs on the second floor, because the other rooms upstairs were occupied (i.e., by his mother, sister, and his sister’s children). He could not recall how long Mr. O’Neil was upstairs lying down.

[101] In cross-examination, Mr. Campbell testified that Mr. Skene was either in the basement or on the phone in the garage the whole time he was at the house April 6/7 (i.e., not upstairs). He testified that Mr. Mahdale would go upstairs and come back to the basement, and that he could go all over the house. But he also agreed that Mr. Mahdale was in the basement most of the time

[102] Mr. Campbell testified that all four men were at the house the night of April 6/7, 2017. He testified that Mr. Creighton slept in the bedroom at the top of the stairs on the second floor the night of April 6/7, 2017.

[103] In cross-examination, Mr. Campbell said that on the night of April 6/7, Mr. Mahdale slept in the second basement bedroom with him. He said he put the mattress on the floor (i.e., leaving the box spring on the bed frame). In cross-examination, he denied that taking the mattress off was a lot of effort. He said he just slid it off. Then in the morning he put it back on when they were ready to leave for the mall.

[104] Mr. Campbell testified that his brother Mr. O’Neil slept in the other basement bedroom (i.e., the bedroom associated to Mr. O’Neil). He said Mr. Skene slept on the pink one-seater couch, slouched in it. He said Mr. Creighton “crashed” in the bedroom on the second floor at the top of the stairs (i.e., the room where the cocaine was found behind the intercom). Mr. Campbell testified that he did not actually see Mr. Creighton upstairs, but that Mr. Creighton took a slice of pizza, and said he was going to crash, and went upstairs. However, at another point in cross-examination, Mr. Campbell said the pizza was in the kitchen, and that the others brought pizza downstairs to him in the basement. Mr. Skene brought his pizza downstairs to the basement to eat.

[105] Mr. Campbell agreed in cross-examination that Mr. Creighton lived nearby, within walking distance. When asked why Mr. Creighton did not go home that night, Mr. Campbell said that Mr. Creighton did not say, and that they had had a few drinks. Mr. Campbell said they were drinking beer and shots of liquor. He did not know how much Mr. Creighton had to drink. Mr. Campbell said he had four or five shots.

[106] In cross-examination, Mr. Campbell testified that on the morning of April 7, they woke up and decided to go to the mall. He said none of the men who stayed over showered that morning before they left to go to the mall.

[107] In cross-examination, Mr. Campbell was shown the portion of the pre-search video that shows the basement washroom, and agreed one could not see any towels in that washroom. He said he left his towel and his rag rolled up at one end of the work bench (I pause to note that it is clear from the pre-search video that there were toiletries and multiple toothbrushes in the basement bathroom: see pre-search video at 5:49). Crown counsel then began a line of questioning about rolling up a wet towel. I pointed out to counsel that she had not established that there was a wet towel the morning of April 7, as she had previously asked if the other men had showered on the morning of April 7, and Mr. Campbell had told her they had not. Crown counsel then asked Mr. Campbell if he had showered the morning of April 7. He said he had not. He said he had showered the day before, left the towel to dry on the door (I presume of the bathroom), and then rolled it up once it was dry and put it on the bench press.

[108] Regarding the time of the arrest, Mr. Campbell testified that he left the house, along with Mr. Mahdale, Mr. Skene, and Mr. O’Neil. He testified that Mr. Creighton did not come out front with them. Mr. Campbell was going to give them a ride to the Eaton Centre. He walked down the drive to the Chevy Equinox. He pushed the key fob to unlock the vehicle. He then saw a car come around the corner at a high speed, and then saw police lights. An officer then got out with a firearm drawn. He put his hands up. The officer told him to get on the ground, and he complied and was arrested.

[109] While this was happening, Mr. Mahdale, Mr. Skene, and Mr. O’Neil ran. Mr. Campbell testified that he did not know why they ran.

[110] In cross-examination, Mr. Campbell agreed that he did not know either Mr. Creighton or Mr. Mahdale to sell drugs, but he know both had been in trouble with the police. He testified that he did not know what Mr. Skene did for work. He was asked if he knew his brother Mr. O’Neil to sell drugs. He said he did not know what he did, and that his brother was a working man, who went to work most of the week.

Has the Prosecution proven possession beyond a reasonable doubt?

[111] Although I accept that Mr. Campbell, as one of the residents of the Kirk Drive address, had a level of control over the residence, I am not persuaded beyond a reasonable doubt that he had knowledge of the cocaine hidden behind the intercom switch plate. The reasons for my doubt arise out of weaknesses in the prosecution’s circumstantial case for possession, and out of having a reasonable doubt based on Mr. Campbell’s evidence. In the language from W.D. and Villaroman, Mr. Campbell’s evidence leaves me with a reasonable doubt, and I find that on the whole of the evidence, there are other reasonable inferences (other than Mr. Campbell’s guilt), which are that one of the other people associated with the house – either Mr. Campbell’s brother Mr. O’Neil, or Mr. Mahdale – possessed the cocaine.

[112] The defence submits that the Crown’s case is not sufficient to prove beyond a reasonable doubt that Mr. Campbell had knowledge of the cocaine. The defence submits that the evidence of Mr. Campbell’s connection to the room where the cocaine was found is weak, as it is based on dated documents in his name, and that the size 40 pants in that room would not have fit Mr. Campbell at 360 pounds. The defence submits that the police surveillance evidence shows other unknown people coming and going from the house freely, who thus had access to the house. The defence submits there is no fingerprint or DNA evidence to connect Mr. Campbell to the drugs or the intercom panel. The defence submits there was nothing on Mr. Campbell’s person to suggest any drug activity by him. The defence submits that based on DC Smith’s evidence, it would not have been obvious that there was a hiding place behind the intercom. The defence submits that there is no direct evidence of when Mr. Campbell was last in the second floor bedroom, and Mr. Campbell’s evidence that he moved out of that bedroom months earlier is credible, and corroborated by other evidence, such as his size, and the evidence in the pre-search video of the second floor hall washroom being out of service. The defence also submits that bed, TV and chair in the second basement bedroom, as well as the computer equipment on the desk are corroborative of Mr. Campbell’s evidence of living down there, and using the desk for his music making beats. The defence also points to the $9,000 in cash, the scale, and the torn pieces of garbage bag that DC Taylor testified to in response to a question about drug paraphernalia as supporting a non-speculative inference that Mr. O’Neil possessed the cocaine.

[113] Prosecution counsel submits that the documents in Mr. Campbell’s room in the bedroom at the top of the second-floor stairs connect him to that room. She notes that there are no documents in anyone else’s name in that room. Prosecution counsel submits that Mr. Campbell’s evidence that he had moved to the basement is not credible, and that the fact that he is a large man does not mean he can’t climb stairs. Prosecution counsel points to the absence of personal items and clothes in the second basement bedroom as evidence that Mr. Campbell was not living there. Prosecution counsel submits that Mr. Campbell’s evidence about letting his towel dry the day before and then rolling it up is “convenient” and not true. Prosecution counsel argues that in light of the value of the cocaine, it would not make sense for someone to leave it in the bedroom unless they could control access to the bedroom. She submits that in light of Mr. Campbell’s evidence that he lived in that bedroom for ten years, it makes “more sense” that the cocaine was his. In particular, in relation to the possibility of Andrew O’Neil having possessed the cocaine, prosecution counsel submits that it makes “more sense” that the cocaine belonged to the defendant.

[114] I accept that Mr. Campbell had a level of control over the Kirk Drive residence, along with the other adults who lived there (his mother, sister, and brother). Mr. Campbell agreed in cross-examination that he had a key to the house. He also agreed that as a resident of the house, he could grant or deny permission for others, such as friends, to enter or stay at the house.

[115] However, for a number of reasons, I am not persuaded beyond a reasonable doubt that he had knowledge of the cocaine was hidden in the wall behind the intercom.

(i) Weakness of evidence that Mr. Campbell occupied the room at the top of the stairs in April 2017

[116] My first concern is that the evidence of Mr. Campbell’s ongoing connection at the time of the search to the room at the top of the stars on the second floor where the cocaine was found is weak. The prosecution bases its claim that the room was Mr. Campbell’s room in April 2017 on the presence of documents and identification in his name, and the presence of relatively large sized clothes, in particular pants with a 40-inch waist, and size 2XL shirts. I find that there are weaknesses with both of these bodies of evidence.

[117] With respect to the identification and documents, what was found in that room was dated in relation to the date of the search. The most recent document in that room with a date is dated November 2016 (the Ontario Drug Benefit Eligibility Card), and several of the documents and mail are much older than that. The only two things which could be considered identification (the Ontario Drug Benefit Eligibility Card and a MasterCard) are both dated. The Ontario drug Benefit Eligibility card states that it is for the benefit period November 1, 2016 to the end of November 2016. The Mastercard has an expiry date of March 2017. As I have noted above, I take notice that credit cards are issued some number of years in advance of their expiry dates. I note as well that this particular credit card still had the sticker on the front with the activation information, which people normally remove if the card is activated. Thus, I find that the documents do not provide positive proof of occupancy of the room by Mr. Campbell in April 2017, since they are dated. Indeed, I find that the fact that the most recent dates are in November 2016 is more consistent with Mr. Campbell’s evidence that he moved out of the room in December 2016 or January 2017.

[118] With respect to the clothes in the upstairs bedroom, I find that the size 40 pants are not consistent with a size that would have fit Mr. Campbell in April 2017. It is not in dispute that Mr. Campbell was around 5’ 10” tall and weighed at least 360 pounds at that time. Based on common sense and experience, I find that a person weighing 360 pounds at 5’ 10”, which is an average height, would not fit into size 40 waist pants. I draw this conclusion based on experience that an average size man of 5’ 10” to 6’, weighing in the range of 180-200 lbs., usually wears size 34 or size 36 pants. I find that someone who weighed in the range of 160-180 pounds more than that would not fit a size 40 waist. Put differently, I find that adding 160-180 pounds in weight would not add only 4 to 6 inches to a waistline; it would add much more. Crown counsel agreed during submissions that it was open to me as the trier of fact to draw this type of inference based on common sense and experience. I also accept Mr. Campbell’s evidence that he would not fit a size 40 waist in April 2017, and had not for some years prior to that.

[119] I do not draw any inference one way or the other in relation to the size 2XL shirts, given that T-shirts are stretchy. Thus, I find that the size 40 pants are not positive evidence that that Mr. Campbell occupied the room in April 2017, and indeed are evidence that someone smaller occupied the room.

[120] Thus, the Crown’s case that Mr. Campbell occupied the room where the cocaine was found in April 2017 is weak.

[121] Further, I am left in a reasonable doubt by Mr Campbell’s evidence that he moved to the basement in December 2016 or January 2017. Although I have some concerns about some aspects of Mr. Campbell’s evidence, ultimately, his evidence leaves me with a reasonable doubt. It is clear from the pre-search video, and the police evidence, that the second-floor hall bathroom was not useable in April 2017 because it was under renovation. The toilet was uninstalled and was sitting in the hall. This objective evidence provides support for Mr. Campbell’s evidence about one of the reasons why he moved to the basement (because of the renovations).

[122] Crown counsel points to there being no clothes in the bedroom in the basement that Mr. Campbell said he was using. I agree that this is one area of weakness in his evidence. However, there was no closet in that bedroom, and thus no place to store clothes there. Mr. Campbell explained that his clothes were folded on the bench press. I find that it is clear there is something that looks like clothes on the bench press which can be seen in the pre-search video. The officers who testified about it agreed that there were clothes there. And I note that none of the officers checked the sizes on the clothes there. Thus, there is nothing to contradict Mr. Campbell’s evidence that those were his clothes.

[123] I also have considered Crown counsel’s submission that there were no documents in Mr. Campbell’s name in the downstairs bedroom. But there are also no current documents in the upstairs bedroom.

[124] I am not satisfied that the evidence shows that Mr. Campbell occupied the bedroom at the top of the second-floor stairs in April 2017.

(ii) It was not apparent that the intercom panel had a hiding place behind it

[125] My second concern is that even if the Crown had a stronger case that Mr. Campbell occupied that bedroom, I find that the fact that cocaine was hidden behind the intercom panel would not have been apparent to someone who was not looking for it.

[126] I base this conclusion on DC Smith’s evidence (since there is no objective evidence such as photos of the intercom switch plate before it was removed and the other switch plates in the room). I accept DC Smith’s evidence as true. But I note that in light of the fact that he testified about the specific appearance of the switch plates and the intercom plate, it is unfortunate that there are no photos for the court to look at to assess itself.

[127] DC Smith, an experienced drug investigator, was in the bedroom for the purpose of searching for drugs or evidence related to drugs. As part of the he was looking for hiding places that things might be hidden. Despite his experience, and intention to look for hidden places, he had essentially completed his search of that bedroom and only found the documents in Mr. Campbell’s name in the closet. He then stopped, and looked around for the specific purpose of looking to see if anything looked unusual. It was only then that he noticed that the switch plates in the room had paint at the edges, as if they had not been removed the last time the room was painted, but that the intercom switch plate did not have paint at the edges. He agreed that earlier he had not seen any difference between the intercom switch plate and the other switch plates in the room. He also testified that a reasonable amount of force was required to remove the switch plate for the intercom.

[128] Based on DC Smith’s evidence, I find that it would not have been obvious that there was a hiding place behind the intercom.

(iii) Other people had regular access to the house and to the room at the top of the stairs

[129] My third concern relates to other people with regular access to the Kirk Drive house who I find there is a reasonable inference could have possessed the cocaine behind the intercom panel without Mr. Campbell’s knowledge. I find that there is a non-speculative inference available that that someone else hid the cocaine behind the intercom in the bedroom at the top of the stairs, at least with respect to Mr. O’Neil and Mr. Mahdale.

[130] I should make clear at the outset that I rule out the workmen doing renovations on the house as alternative people who could have possessed the cocaine. Given the value of the drugs, and also the fact that there is no evidence that the workmen could come and go freely from the house, I do not accept that the possibility that one of the workmen left the cocaine there is a reasonable inference on the record before the court.

[131] The evidence of the police surveillance witnesses is clear that on April 5, 6, and the morning of April 7, unknown males who were not the defendant were coming and going from the home (and an unknown female). With the one exception of the male on the morning of April 7 who had trouble getting back in and appeared to phone someone to be let it, the evidence supports that these people came and went as they pleased, and did not have difficulty entering the home, or need anyone to let them in.

[132] The police were unable to identify any of the unknown males on April 5, 6, or 7. It seems to me that there is some likelihood that the unknown men on April 5 and 6 were some combination of Mr. O’Neil, and some of Mr. Mahdale, Mr. Creighton, and Mr. Skene. In particular, I find that there is a very strong likelihood that one of the unknown males that the police observed on April 5, 6, and 7, was Andrew O’Neil. I base this on Mr. Campbell’s evidence, and the evidence in the Crown case that strongly supports that Mr. O’Neil was living in the other basement bedroom (the search evidence, and the evidence that his car was registered to the Kirk Drive address, and that his driver’s licence bore the Kirk Drive address).

[133] I further find that the number unknown males observed during the police surveillance coming and going freely on April 5 and 6 provides some corroboration for Mr. Campbell’s evidence about the frequency with which Mr. O’Neil, Mr. Mahdale, Mr. Creighton, and Mr. Skene were present at the house in the days preceding April 7. Based on Mr. Campbell’s evidence, I find that the two men observed by police on April 7 in the morning were two of either Mr. O’Neil, Mr. Mahdale, Mr. Skene, or Mr. Creighton.

[134] If the police evidence were standing alone, there would not have been any evidence of the nature of the connection of the unknown males to the Kirk Drive house, and any of them potentially could have possessed the cocaine, given the observations that they seemed to be freely entering the home. However, in light of Mr. Campbell’s evidence, I find that it would appear unlikely that Mr. Creighton or Mr. Skene would have hidden the cocaine in the upstairs bedroom. Although Mr. Campbell’s evidence was that they were regularly at the house, and could go upstairs, he did not given evidence that they could come and go freely without permission from the occupants. In the absence of an ability to come and go freely, I find it would be unlikely that they would have left something as valuable as the 99 grams of cocaine in the bedroom behind the intercom panel.

[135] Crown counsel made the submission that given the value of the cocaine, it would not have been left in the upstairs bedroom without the occupant of that bedroom knowing. I accept that the case law supports that this type of reasoning is available to a trier of fact as a permissible factual inference – not mandatory: see, for example, R. v. McIntosh, 2003 41740 at paras. 45-46; R. v. Fredericks, 1999 949 at paras. 3-4; R. v. Ukwuaba, 2015 ONSC 2953 at para. 102. But I see two problems that lead me not to draw that inference in this case.

[136] First, the starting point of the inference the Crown seeks would be a finding of fact that Mr. Campbell was the occupant of the bedroom at the top of the stairs in April 2017. As I have outlined above, I find that the prosecution case that Mr. Campbell still occupied the upstairs bedroom where the cocaine was found in April 2017 is weak.

[137] Second, I find that the inference about the value of the cocaine ruling out possession by other people is weak in this case as it relates to Mr. O’Neil and also as it relates to Mr. Mahdale (although that conclusion is not as strong in relation to Mr. Mahdale). I will address first Mr. O’Neil, and then Mr. Mahdale.

[138] I find that Mr. O’Neil also lived in the Kirk Drive house. This is clear from the evidence found in the bedroom in the basement that the police associated to him. It is clear from Mr. Campbell’s evidence. And it is also supported by the fact that the Nissan Rogue was registered to Mr. O’Neil at the Kirk Drive address, and his driver’s licence also bore the Kirk Drive address.

[139] As a resident of the house, Mr. O’Neil could move about freely within the house. As Mr. Campbell’s brother, and as a resident of the house, Mr. O’Neil would have been in a position to knowledge of the patterns of movement of the occupants of the house. Further, as I have found above based on DC Smith’s evidence, it would not have been obvious to a causal observer that there was a hiding place behind the intercom in the upstairs bedroom. Putting these two facts together, I find that on the evidence before the court, sole possession of the cocaine by Andrew O’Neil is a non-speculative available inference. The inference the Crown seeks that the value of the cocaine would lead a possessor not to leave it where someone else could find it is weak in the particular circumstances of this case in relation to Mr. O’Neil.

[140] Third, the inference of sole possession of the cocaine by Andrew O’Neil is strengthened by the very large, unusual, and unexplained amount of cash, $9,000, in Mr. O’Neil’s bedroom, along with a drug scale.

[141] One possible inference arising out of the evidence before the court is joint possession of the cocaine by Mr. Campbell and Mr. O’Neil. But I am not able to rule out the non-speculative inference that Mr. O’Neil possessed the cocaine without the knowledge of Mr. Campbell.

[142] I find that the situation in relation to Mr. Mahdale is less clear than with respect to Mr. O’Neil. Mr. Campbell described Mr. Mahdale his brother in law, but it was not clear on the evidence if he was married to the sister who lived at Kirk Drive, or to the sister who lived in Mississauga. Mr. Campbell testified that in the two weeks prior to April 7, Mr. Mahdale was at the house every day, and had freedom to go where he wanted in the home. However, the exact nature of Mr. Mahdale’s connection to the house was somewhat vague in Mr. Campbell’s evidence. Given the record before the court, and in particular the police surveillance evidence of more than one unknown black male coming and going freely from the Kirk Drive address on April 5 and 6, and Mr. Campbell’s evidence about the fact that Mr. Mahdale was his brother in law, his frequency of attendance at the house, and that a relative would have more access to the home than just a friend like Mr. Skene or Mr. Creighton, I find that it is a non-speculative inference that Mr. Mahdale could have possessed the cocaine. It is not nearly as strong an inference as the possibility that Mr. O’Neil possessed the cocaine, but it is not speculative.

(iv) The Flight of the other males when the takedown happened

[143] The fourth factor that contributes to my having a reasonable doubt is that when the police called the takedown, the other men who had exited the residence with Mr. Campbell all ran. Based on Mr. Campbell’s evidence, I find that these men were Mr. Skene, Mr. O’Neil, and Mr. Mahdale. I also accept that Mr. Creighton was at the house and fled too, since he was not in the house when police entered and cleared the house.

[144] The fact that those men chose to flee when police moved in is some evidence that they were involved in unlawful activity (in the nature of the type of inference in case law involving after the fact conduct – what we used to refer to as “consciousness of guilt”). It is not a factor that I give a lot of weight, but I give it some weight in my conclusion that the Crown has not proven beyond a reasonable doubt that Mr. Campbell had knowledge of the cocaine. However, I should make clear that I do not rely on the fact that Mr. Campbell did not run as evidence of his innocence. Given his size, it may simply not have been realistic for him to run. It is a neutral factor.

[145] Before leaving the circumstantial evidence, I note as well that this is not a case where there is any evidence of conduct by Mr. Campbell that could be inferred to be drug transactions. Such evidence is not required for a count of possession for the purpose of trafficking. But where such evidence exists, it may shore up an otherwise weak case in relation to knowledge of the drugs.

(v) Mr. Campbell’s evidence leaves me with a reasonable doubt

[146] The fifth factor that contributes to my having a reasonable doubt is that Mr. Campbell’s evidence leaves me with a reasonable doubt. As I have noted above, I do have some concerns about Mr. Campbell’s credibility. I have outlined some of them above at paragraphs 121-123. In addition, I find that there was some inconsistency or lack of clarity in Mr. Campbell’s evidence about how long prior to the morning of April 7 Mr. Mahdale, Mr. Creighton and Mr. Skene had been at the house. However, I note as well that the evidence of the police is clear that the men who ran were at the house prior to when the police arrived to begin surveillance that morning, because the police did not see them arrive. This provides some support for Mr. Campbell’s evidence that they spent the night of April 6/7, 2017 at the Kirk Drive house.

[147] Ultimately, in the context of the evidence as a whole, although I do not go so far as to believe Mr. Campbell’s evidence under the first branch of W.D., his evidence leaves me with a reasonable doubt, particularly given the weaknesses I have outlined with the Crown’s circumstantial case.

[148] As the Supreme Court held in Lifchus, the prosecution’s burden of proof beyond a reasonable doubt is a heavy one. On the record before me, I am not satisfied beyond a reasonable doubt that the prosecution case proves that Mr. Campbell was in possession of the cocaine, either sole possession or joint possession. I have a reasonable doubt based on the second and third branches of W.D. Although I have some concerns about Mr. Campbell’s credibility, his evidence as a whole, taken in the context of the weaknesses in the Crown’s circumstantial case, leaves me with a reasonable doubt under the second branch of W.D. Further, I find that the prosecution’s circumstantial case for possession does not persuade me beyond a reasonable doubt that he was in possession. In particular, with the connection of Mr. Campbell to the upstairs room being based on dated documents, and the hiding place behind the intercom panel not being readily apparent to a casual observer, and the other people coming and going from the house freely, in particular Mr. Campbell’s older brother Mr. O’Neil and to a lesser extent Mr. Mahdale, I find that another reasonable inference is available – that someone else associated with the house besides Mr. Campbell possessed the cocaine without Mr. Campbell’s knowledge.

Conclusion

[149] For these reasons, I find that the prosecution case fails to satisfy me beyond a reasonable doubt that Mr. Campbell is guilty of possession of cocaine for the purpose of trafficking. I find Mr. Campbell not guilty.

[150] I thank to counsel for their assistance throughout the trial.

Justice J. Copeland

Released: November 24, 2021

COURT FILE NO.: CR-18-10000439-0000

DATE: 20211124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JABARIE CAMPBELL

REASONS FOR JUDGMENT

Justice J. Copeland

Released: November 24, 2021

[^1]: DC Taylor, who testified that he made the observations summarized in paragraphs 30-33 testified that the two unknown males and the unknown female left at 3:16 and returned at 3:30 in the Honda Accord. DC Smith testified that they were in the Chevy Equinox at those times, but did not make the observation himself. Thus, I accept DC Taylor’s evidence as to which vehicle they were in. In any event, the particular vehicle has no relevance to the issues in this case.