R. v. Bailey, 2021 ONSC 8089

COURT FILE NO.: CR-19-90000661-0000 DATE: 2021-12-16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AKEEM BAILEY Defendant

Counsel: Christopher Leafloor and Renee Gregor, for the Crown Ariel Herscovitch, for the Defendant

HEARD: October 12-15, 2021

JUSTICE S. NAKATSURU

[1] On February 2, 2019, Mr. Bailey was driving his mother’s car, a grey Honda Civic with licence place CBPJ 406 (henceforth the “CBPJ Honda”). The police stopped the car, arrested Mr. Bailey, who was the sole occupant, and searched the car. They found a loaded gun and illegal drugs. At this trial, he says a number of his Charter rights were violated. He also argues that the Crown has failed to prove the criminal charges beyond a reasonable doubt.

[2] I will deal with the Charter arguments first.

A. SECTION 8 OF THE CHARTER: UNREASONABLE SEARCH AND SEIZURE

[3] Before stopping the CBPJ Honda, the Toronto Drug Squad got search warrants for two cars and the residence where Mr. Bailey is said to have lived. While the information to obtain the search warrant (“ITO”) is the same for all three warrants, the defence focuses on the search warrant for the car in which the gun, drugs, scales, and phones were found. This car is registered to Novina Harris, Mr. Bailey’s mother, with an address of 519-11 Bergamot Avenue.

[4] When reviewing a search warrant, the test for review is more limited than that applied by the authorizing justice. The reviewing judge must determine whether the record contains “reliable evidence that might reasonably be believed on the basis of which the warrant could have been issued”. The question is not whether the reviewing court would itself have issued the warrant, but whether the justice of the peace was presented with sufficient credible and reliable evidence to permit a finding that the statutory prerequisites were established: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40; R. v. Garofoli, 1990 52 (SCC), [1990] 2 SCR 1421 at paras. 67-68.

[5] In this case, step 6 as outlined in Garofoli was conducted. Although the Crown intended to argue that the search warrants could still have been issued on the basis of the redacted ITO (step 5 of Garofoli), all parties were in agreement that it would be efficient, yet fair, to conduct the step 6 procedure before ruling on step 5. Thus, I prepared a judicial summary of the edits.

[6] This ITO relies heavily on information provided by a Confidential Source (“CS”).

[7] The test for sufficiency of an ITO that is based on an informer's tip is dependent upon whether the tip is compelling, whether the informer is credible, and whether the tip has been confirmed by independent police investigation. Weaknesses in one area may be compensated by strengths in the other two areas: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at 1168.

1. Reasonable and Probable Grounds Based on the Redacted ITO

[8] The Crown’s first position is that this search warrant could have properly been issued based upon the information disclosed in the redacted ITO without any reliance on step 6.

[9] I do not accept this argument. I will discuss in more detail other aspects of the Debot criteria when I deal with the step 6 analysis. At present, it is sufficient for me to say that while the information given by the CS is detailed and significantly based upon first-hand knowledge, the redactions make it impossible to say when the CS advised the affiant of this information. Moreover, the redactions make it impossible to say when the CS gained the information about and made the observations of Mr. Bailey selling drugs; it could be a few days before the issuance of the search warrants or it could be years before. Given the nature of the street-level drug trafficking Mr. Bailey is alleged to have done, the CS’s information could well have been unacceptably stale.

[10] The search warrants cannot be sustained based on the redacted ITO.

2. Resort to Step 6 of Garofoli

[11] Before setting out my analysis, I make two brief comments.

[12] First, the Crown called the affiant, D.C. Joshi, to amplify the record to clarify one discrete area of the ITO regarding when the CS advised him about certain things. The defence takes no issue with this clarification. This was a good faith omission in the ITO. The issuing justice of the peace could not have been misled by this omission.

[13] Second, my reasons are not as fulsome as I would wish because of the need for caution in how I express what I have considered in the redacted portions of the ITO. This is to protect the identity of the CS.

The Compelling Nature of the Information

[14] The information given by the CS is very compelling. It is detailed. It is gained from first-hand observations and knowledge. It is sufficiently recent.

[15] The CS knows Mr. Bailey well. The CS is a customer of Mr. Bailey’s. They state how long they have known Mr. Bailey. They give a detailed description of Mr. Bailey. They identify Mr. Bailey from a photograph. They give specific details about Mr. Bailey’s drug-trafficking activities. The CS knows the address where Mr. Bailey lives, 519-11 Bergamot Avenue. The CS gives Mr. Bailey’s phone number. They aver that Mr. Bailey drives two grey Honda cars; one is the CBPJ Honda, and another is a car with licence plate CADZ 388 (henceforth the “CADZ Honda”). Mr. Bailey meets people in these cars to sell drugs. The CS has bought drugs at Mr. Bailey’s residence and in both cars several times. The CS also gives details of a “crack house” that Mr. Bailey sells drugs at. The CS gives specifics about the types of drugs Mr. Bailey sells, the quantities, and the prices.

[16] I find the information to be current. The judicial summary states that the CS provided the affiant with the information in November of 2018. Based on the amplified record, the affiant received further information from the CS on other occasions after that date. In the ITO, the CS specifically refers to three occasions from November of 2018 to the date of Mr. Bailey’s arrest when they purchased drugs from Mr. Bailey. The actual dates are provided in the unredacted ITO. On one of those occasions, the CS advised they bought drugs from Mr. Bailey in the CBPJ Honda. The other time, they bought drugs from Mr. Bailey in the CADZ Honda.

[17] In sum, the main strength of this ITO comes from the compelling nature of the information provided by the CS.

The Credibility of the CS

[18] I must be discrete when it comes to this criterion. The judicial summary does not reveal whether the CS has a criminal record or has current outstanding charges. As I commented on in my ruling regarding the step 6 judicial summary, on the particular facts of this case, given the nature of the relationship between the CS and Mr. Bailey, even the disclosure of whether the CS has a record or outstanding charges could well narrow the pool of potential individuals who could be the CS and thereby compromise their identity. Nonetheless, the defence was able to make effective alternative submissions when dealing with this Debot criterion.

[19] In assessing those submissions, I will just say that I have carefully considered the information found in the unredacted ITO on this issue. The issuing justice of the peace received full information relevant to this criterion.

[20] Further information material to the CS’s credibility is provided. The motivation of the CS for providing the information is in the ITO. The CS was told that no benefit would be given should the information provided be misleading or false. As well, the CS is registered with the police as a CS and is “carded” as such. The affiant avers that the CS is not known to have provided false information in the past.

[21] Finally, there is detailed information about past cases whereby the CS provided confidential information to the police. The judicial summary advises that there are specific situations in the past in which the CS has provided information which resulted in individuals being arrested and charged. The ITO is silent on whether there were convictions in these cases, but it does provide details of the specific amount of drugs seized.

[22] I agree with the defence that this averment suffers from some of the weaknesses pointed out by Rosenberg J.A. in R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (C.A.). An informer providing information that merely led to the laying of charges is not the same as information that leads to the finding of contraband. In this case, while the ITO does say that drugs were seized, it does not specifically connect the seizure of the drugs to the information provided by the CS. That said, Rosenberg J.A. did note there was some indication of the credibility of the informant in the ITO before the court in Rocha. Moreover, the Crown in Rocha did not rely on step 6 but supported the search warrant on the basis of the redacted ITO. In this case, I note that the unredacted ITO provides greater detail and specifics when it comes to identification of the individuals and the nature and quantity of the drugs seized in the past cases where the CS provided information.

[23] In sum, while there are concerns when it comes to the credibility of the CS, there remains some basis to support that the CS is a credible source of information.

Corroboration of the CS’s information

[24] Mr. Bailey attacks the limited corroboration of the CS’s information, in particular the limited police surveillance. On January 4, 2019, the police conducted surveillance at 11 Bergamot Avenue. In the morning, Mr. Bailey was observed in the rear parking lot of 11 Bergamot Avenue. He helped an unknown female jump-start her car with battery cables he got from the CADZ Honda. This was the extent of the police surveillance. Mr. Bailey argues this corroborates little, if anything, and that given the CS’s information that Mr. Bailey deals drugs on a daily basis, much more surveillance could have been conducted.

[25] The Crown concedes that the surveillance was limited but explains that the CS advised that Mr. Bailey conducted counter-surveillance. As a result, it was difficult to conduct surveillance and to remain covert without jeopardizing the investigation. However, the Crown submits that the CS’s information was corroborated by other information found in the ITO.

[26] I agree with the defence that there was not significant corroboration. Certainly, nothing to directly corroborate that Mr. Bailey was trafficking in drugs. But corroboration of a criminal particular of the offence is not necessary: R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451 at para. 2.

[27] Nonetheless, there was sufficient corroboration of the CS’s information. The following corroboration was placed before the issuing justice of the peace:

• The CS provided a description and was able to identify Mr. Bailey from a photograph. The description in the police database is consistent with the description of Mr. Bailey given by the CS;
• The CS states Mr. Bailey goes by the nicknames “Hawk” or “Shawn”. A CPIC search also reveals an alias of “Hawk” used by Mr. Bailey;
• MTO records show Mr. Bailey’s address as 519-11 Bergamot Road.[^1] CPIC has his address as 519-11 Bergamot Avenue. Mr. Bailey also had outstanding charges of assault and uttering threats with one of the conditions of his release being to reside at 519-11 Bergamot Road. This and the police surveillance confirmed the CS’s information that Mr. Bailey resided at 519-11 Bergamot Avenue;
• MTO checks of the two vehicles that the CS stated Mr. Bailey used to traffic drugs revealed that they are both registered to Mr. Bailey’s mother, Novina Harris, who lived at 519-11 Bergamot Avenue. This revealed that his mother owned the cars that the CS said Mr. Bailey used to traffic drugs. It was reasonable to believe Mr. Bailey could access the vehicles given the shared residence and the close familial connection;
• The surveillance by the police showed that Mr. Bailey had access to one of the cars that the CS advised he drove and trafficked drugs from. While the surveillance did not show him driving that car, it does show him exercising some control over it and its contents;
• Mr. Bailey has a related criminal record. In 2007, he was convicted of offences including conspiracy, possession of a Schedule I substance for the purpose of trafficking, possession of a Schedule II substance for the purpose of trafficking, and unauthorized possession of a firearm. In 2013, he was convicted of offences including possession of a Schedule II substance for the purpose of trafficking.

[28] Given the limited surveillance conducted, the corroboration is not compelling. However, it was not that much different from the corroboration in Rocha where the search warrant based upon a confidential informant’s information that the appellant was trafficking from his restaurant was upheld. There, the police had just confirmed the address of the restaurant, its layout, and the involvement of the appellant and his brother with the restaurant and the vehicles the informant described.

Conclusion

[29] The Debot factors support the issuance of the search warrants. In this ITO, the information was very compelling. There was information supporting the credibility of the CS. There was some corroboration, albeit limited. This ITO is similar in many ways to the ITO in Rocha where Rosenberg J.A. upheld the search warrant of the restaurant.

[30] Mr. Bailey further argues that even if the search warrant could have been issued for the residence and the CADZ Honda, it could not have been issued for the CBPJ Honda as, at the time, there was nothing to connect Mr. Bailey to this car. He submits there were no grounds to believe that evidence of drug trafficking offences could be found in this car.

[31] I do not agree. Looking at the unredacted ITO, the CS expressly connects Mr. Bailey’s drug trafficking to this vehicle. It is said that Mr. Bailey traffics daily using this vehicle. His is an ongoing enterprise. While Mr. Bailey’s use of the CBPJ Honda is not corroborated by police surveillance, the fact that it was registered to his mother who lived in the same household provided some corroboration. The information received from the CS supports that there were reasonable grounds to believe evidence of trafficking would be found in a search of this vehicle.

[32] In conclusion, the totality of the circumstances supported the issuance of the search warrant for the car. The justice of the peace was presented with information of credibly-based probability to permit a finding that the statutory prerequisites were established.

B. SECTION 9 OF THE CHARTER

[33] Mr. Bailey was arrested when his car was pulled over. It is agreed that the grounds for the arrest were the same as the grounds for the issuance of the search warrants. The defence concedes that if the warrants were validly issued, then both subjective and objective reasonable grounds for the arrest exist. As a result, I find there to be no violation of Mr. Bailey’s s. 9 right to be free from arbitrary arrest.

C. SECTION 10(B) OF THE CHARTER: DELAY IN PROVIDING COUNSEL

[34] There was a delay in affording Mr. Bailey access to counsel after he asked to speak to his lawyer. The Crown concedes that there has been a s. 10(b) violation. The only questions are the reasons for the delay and its length.

[35] Although the defence did not provide written notice of this Charter application and it was only raised on the first day of trial, the Crown was prepared to deal with the challenge. Moreover, the parties cooperated and distilled the evidence into an Agreed Statement of Fact (“ASF”). They are to be commended for their efforts.

1. Summary of the Facts

[36] The ASF provides:

• On February 2, 2019, three Controlled Drugs and Substances Act (“CDSA”) search warrants were issued in regard to the target Akeem Bailey. The search warrants were for a residence and two vehicles, in particular Apartment 519 at 11 Bergamot Avenue, the CADZ Honda and the CBPJ Honda. These search warrants were valid from February 2, 2019 at 6:10 p.m. until February 5, 2019. At 7:30 p.m. on February 2, 2019, a briefing was held in regard to these search warrants, and attending at that briefing were Det. Tracey (officer in charge), D.C. Fraser (road boss), D.C. Greaves, D.C. McCabe, D.C. Nishikawa, and D.C. Joshi (affiant for the search warrants, and assigned to do central notes). D.C. Fraser led the briefing, as his role was road boss, and that meant that he was the instructing officer as to the activities of his team while they were on the road. At the briefing, it was discussed that the team would attempt to locate Mr. Bailey and execute the search warrants. The briefing was completed at 7:38 p.m.
• On February 2, 2019, at 9:13 p.m., police observed Akeem Bailey operating the CBPJ Honda on Martin Grove Road Northbound near Finch Avenue West and Albion Road. The road boss D.C. Fraser ordered the team to stop the vehicle and arrest Mr. Bailey.
• Police boxed the vehicle in and arrested Mr. Bailey at 9:16 p.m.
• Mr. Bailey was provided with a caution regarding his right to counsel at 9:20 p.m. by D.C. Fraser, the road boss. In response to the question, “Do you understand?”, Mr. Bailey said, “No. Are you guys following me?” D.C. Fraser re-cautioned Mr. Bailey, who gave no response at that time to the question of whether he wished to call a lawyer.
• At 9:24 p.m., D.C. Fraser called for a uniform transport.
• At 9:41 p.m., Mr. Bailey was turned over to the transport officers, P.C. Gorny (#5300) and P.C. Jackson (#9301). D.C. Fraser advised the transport officers that Mr. Bailey had already received his right to counsel, but that it could be provided again on camera. At 9:46 p.m., Mr. Bailey was re-cautioned in the transport vehicle. He indicated that he wished to call a lawyer.
• At 9:51 p.m., Mr. Bailey was on route to 23 Division. He arrived there at 9:54 p.m. At 10:06 p.m., the outside doors opened to the police garage and Mr. Bailey was paraded before S.Sgt. Higgins. At 10:11 p.m., he was “Level 3” searched. At 10:18 p.m., Mr. Bailey was lodged in a cell and D.C. Gorney wrote in his notes, “direction no phone call”. His notes are silent on who gave this direction.
• D.C. Fraser is on medical leave and is currently not available to testify or provide information about his recollection of events. It is likely that D.C. Fraser instructed the members of his team to delay implementing phone calls until after the search warrant had been executed at the apartment as he was the officer with the authority to make such a decision.
• No officer made any note of giving the instruction to delay Mr. Bailey’s phone calls or the reason for that instruction.
• If called as witnesses, D.C. Joshi and D.C. Nishikawa would have testified that they did not give this direction and did not have the authority to give such a direction. D.C. McCabe would have testified that she did not give this direction. All of these officers were present for the arrest of Mr. Bailey.
• At 10:43 p.m., police executed the search warrant at the target address. The officers present for execution were: Det. Tracey; D.C. Fraser; D.C. Greaves; D.C. McCabe; D.C. Nishikawa; and D.C. Joshi. The search concluded at 12:38 a.m. and D.C. Joshi returned to 23 Division thereafter. When the warrant was executed at the target address, the police detained the following persons who were then released with no charges: Novina Harris, Akelia Brown, and Tristan Bailey.
• At 1:17 a.m., D.C. Joshi commenced his attempts to put Mr. Bailey in touch with his counsel of choice, Mr. Herscovitch. Mr. Bailey asked D.C. Joshi to call his mother, Novina Harris, to obtain a number for Mr. Herscovitch. At 1:19 a.m., D.C. Joshi spoke with Ms. Harris who provided him with a phone number. At 1:22 a.m., D.C. Joshi called that number and spoke to an articling student who advised him of an alternative phone number for Mr. Herscovitch. At 1:26 a.m., D.C. Joshi called the number provided to him by the student and left a voicemail message for Mr. Herscovitch.
• At 1:31 a.m., D.C. Joshi advised Mr. Bailey that he had left a voicemail for Mr. Herscovitch. At that juncture, Mr. Bailey requested that he be permitted to speak to his mother. D.C. Joshi allowed this. After speaking to his mother, Mr. Bailey provided D.C. Joshi with another phone number for Mr. Herscovitch. D.C. Joshi phoned this third number, which was the number to the criminal defence firm Derstine Penman, and was informed that Mr. Herscovitch did not work there. D.C. Joshi then advised Mr. Bailey that the most recent phone number he had produced was not the correct one for his counsel of choice. At 1:53 a.m., Mr. Bailey spoke with duty counsel.
• At 2:19 a.m., police executed the warrant on the second target vehicle.
• No officer ever attempted to elicit a statement or any evidence from Mr. Bailey from the time of his arrest to the time he spoke with counsel.
• All facts that are agreed upon as part of the trial proper and the Garofoli and ss. 8 and 9 Charter applications, including the facts with respect to the ITO, are applicable to the s. 10(b) application.

2. Analysis

[37] The duty to inform a detained person of their right to counsel arises “immediately” upon arrest or detention. The duty to enable access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The police are therefore under a constitutional obligation to help the detainee access a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at para. 24.

[38] Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[39] Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel. Such concerns must be case-specific rather than general concerns applicable to virtually any case. The police may delay access to counsel only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: R. v. Rover, 2018 ONCA 745 at paras. 26-27.

[40] The Crown submits that there were case-specific concerns justifying the delay of access to counsel resulting from execution of the search warrant at 519-11 Bergamot Avenue. Accordingly, the s. 10(b) violation commenced only after the search was completed. Thus, the unreasonable delay was from 12:38 a.m. to 1:17 a.m. when D.C. Joshi commenced his substantial efforts to contact counsel of choice. This is a period of 39 minutes. In the alternative, the period of unreasonable delay in facilitating access to counsel was from the time the search warrant was executed, 10:43 p.m., to 1:17 a.m., a period of 2 hours and 34 minutes.

[41] The defence submits that there is no case-specific reason why the police delayed Mr. Bailey’s access to counsel. Once Mr. Bailey said at 9:46 p.m. that he wanted to speak to his lawyer, the police should have soon thereafter facilitated his access to counsel. Thus, the violation of s. 10(b) covered a period of time from 9:46 p.m. to 1:17 a.m., a period of approximately 3.5 hours. The defence admits that the delay after 1:17 a.m. was reasonable given the efforts made by D.C. Joshi.

[42] We are in a rather unique situation because D.C. Fraser, the officer who would have provided the best evidence regarding the reasons for the delay, is not available. However, the ASF states that the parties admit that it was likely D.C. Fraser who made the decision to delay Mr. Bailey’s access to a lawyer. The police certainly turned their mind to delaying Mr. Bailey’s access to a lawyer. Why else would D.C. Gorney have noted down “direction no phone call”? Given that D.C. Fraser was the road boss that evening, he would have been the officer who would have made this decision. The other arresting officers did not do so, nor did they have the authority to do so.

[43] Based on the whole of the evidence, I find that there were case-specific reasons that justify the delay for the purpose of executing the search warrant.

[44] First, I find that the Crown has proven on a balance of probabilities that the reason for the delay was to execute the search warrant. The ASF states, “D.C. Fraser instructed the members of his team to delay implementing phone calls until after the search warrant had been executed at the apartment.” In other words, D.C. Fraser turned his mind to delaying Mr. Bailey’s access to counsel because they were going to execute the search warrant and not arbitrarily or for some other reason.

[45] Second, I accept that D.C. Fraser’s decision to delay Mr. Bailey’s access to counsel in order to execute the search warrant was reasonable in the circumstances. It was not merely done as a matter of practice or based upon general concerns that may arise in every case. On the facts of the case, a loaded handgun and drugs were found in the car that Mr. Bailey was driving. Thus, immediate and obvious safety concerns arose. The information in the ITO was that Mr. Bailey also trafficked from his residence and that there were other adult members of the household living there. Moreover, the redacted information in the ITO supports even more concrete concerns about safety and the potential destruction of evidence if members of the household found out that the police were going to execute a search warrant at the home. In light of this information, I can infer that there was a justifiable basis to delay Mr. Bailey’s access to a phone to contact counsel until the police began their execution of the search warrant.

[46] However, once the police entered the premises and took control of the persons inside, this justification dissipated. They were now under a duty to minimize the delay in Mr. Bailey’s access to counsel. This they did not do.

[47] Once the police entered into the premises, they found and detained three persons. Six officers were involved in the search. Nothing in the evidence supports any reason why one of those officers could not have made a phone call or radioed back to the police station where Mr. Bailey was being held so that he could call his lawyer. It may well be that there was some reason why, once the police entered the residence, access to counsel could not have immediately been provided. For instance, a specific police or public safety concern could have arisen given the situation that confronted them at 519-11 Bergamot Avenue. However, the ASF does not provide any reason. Nor can I infer an explanation based upon the evidence. Thus, the Crown has not shown why an officer could not have placed a call to the police station to permit Mr. Bailey to call a lawyer at 10:43 p.m. or shortly thereafter. Barriers to access must be proven, not assumed: Taylor at para. 33.

[48] The Crown relied upon the case of R. v. Griffith, 2021 ONCA 302, for the proposition that the police are allowed to delay access to counsel until they have completed a search. Jamal J.A. (as he then was) found this to be so on the facts of Griffith. In my opinion, this finding was not a categorical pronouncement that the delay is justified until the search pursuant to a warrant is completed. Rather, it was a factual finding made by the trial judge that the officer safety concerns in that case persisted until the search was completed.

[49] The factual nature of the inquiry is highlighted by other cases where the concerns justifying the delay of access to counsel ended once the police entered and secured the place to be searched, as opposed to once they completed the search: R. v. Strachan (1988), 1988 25 (SCC), 46 C.C.C. (3d) 479 (S.C.C.); R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092 (S.C.) at para. 75; R. v. Patterson, 2006 BCCA 24 at para. 29.

[50] Thus, the operative delay caused by the breach of s. 10(b) in this case is approximately 2.5 hours.

D. SECTION 24(2)

[51] A temporal and contextual connection exists between the s. 10(b) violation and the impugned evidence.

[52] There are three lines of inquiry in deciding whether the evidence seized from the Honda should be excluded under s. 24(2) of the Charter. These are: 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

1. Seriousness of the Charter-Infringing Conduct

[53] The violation was serious. That much is clear, given that the police showed no interest in mitigating the delay in providing Mr. Bailey with access to counsel: Rover at para. 39. The seriousness of the violation is aggravated by the fact that no one explained to Mr. Bailey the reason for the delay in his ability to contact counsel. Moreover, while the defence concedes the officer-in-charge of the station acted in good faith, as the video of the parading shows, Mr. Bailey was told that he would be able to call a lawyer once the Level 3 search had been completed and he was taken upstairs. I can infer that Mr. Bailey would likely have felt confused and betrayed by the delay given what the police had told him.

[54] On the other hand, there are some other factors that prevent this case from falling to the most serious end of the spectrum of such violations. There is no evidence that the failure to provide Mr. Bailey with an opportunity to speak to a lawyer earlier was systemic or part of a pattern of misconduct. This factor, absent here, was the main reason why in Rover the s. 10(b) violation was held to be particularly grave.

[55] I appreciate that the actual reason for the delay is left unexplained in the ASF. As pointed out, D.C. Fraser is not available to provide an explanation. While this does not lessen the onus on the Crown to explain the delay under the s. 10(b) part of the analysis, when it comes to the exclusion of the evidence under s. 24(2), the burden is on the applicant. Jamal J.A. pointed out in Griffith (at para. 63) that Mr. Griffith had similarly not provided an explanation for the delay on the facts of that case. He highlighted the onus on the applicant and the fact that this failure was material to whether he had proven that the admission of the evidence would bring the administration of justice into disrepute. Ultimately, Jamal J.A. held that Mr. Griffith had not, and admitted the evidence of the gun and drugs.

[56] In addition, in other ways and at other times, the police were very mindful of Mr. Bailey’s s. 10(b) rights. At the scene of Mr. Bailey’s arrest, the police were not satisfied with the lack of response to their initial reading of the right to him. It was repeated when he was at the cruiser. This solicited Mr. Bailey’s request to speak to counsel. Again, D.C. Joshi’s commendable attempts to provide Mr. Bailey access to his counsel of choice also shows the considerable degree of attention paid to ensuring his right to counsel. The police’s Charter-compliant behaviour does not mitigate the seriousness of the breach, but rather shows a lack of other aggravating features of the s. 10(b) violation: R. v. Reilly, 2021 SCC 38. It assists me in determining whether the police’s actions were in bad faith or part of any pattern of abusive conduct. Looking at the whole of what transpired, I find that the police did not act in bad faith and that there was no pattern of police abuse that evening.

[57] A consideration relevant to the seriousness of the violation is that the police had obtained the search warrants before they went to arrest Mr. Bailey. This was a proactive step that would minimize any delay to facilitating access to counsel. That said, I appreciate that the police did not take advantage of this proactive step.

[58] In assessing the seriousness of the violation, the overall question to resolve is whether the police engaged in misconduct from which the court should dissociate itself. For example, where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter, there is a greater need for the court to dissociate itself from the police conduct. On the other hand, if the breach was merely of a technical nature or reflected an understandable mistake, dissociation is much less of a concern.

[59] I find there is a need for the court to dissociate itself from the police’s conduct in this case, though this need is not as high as on the facts of Rover.

2. Impact on the Accused’s Charter-Protected Interests

[60] I find the impact to be moderate. It is not minimal given the purpose behind s. 10(b). Mr. Bailey was left for about 2.5 hours without the right to counsel, which the Court of Appeal has described as a “lifeline” for detainees: Rover at para. 45.

[61] On the other hand, violations of greater lengths of time in other cases have not led to the exclusion of evidence: Learning at paras. 75-76; Griffiths at paras. 73-74.

[62] Moreover, there is no causal connection between the violation of s. 10(b) and the finding of the gun and drugs in the car. While the temporal and contextual connection permits the application of s. 24(2), the lack of a causal connection mitigates the impact on Mr. Bailey’s Charter-protected interests: Grant at para. 122; Griffiths at para. 71; R. v. Do, 2019 ONCA 482 at para. 71.

[63] My conclusion on this factor is similar to Jamal J.A.’s conclusion in Griffith.

3. Society’s Interest in the Adjudication of the Case on its Merits

[64] This societal interest is strong. The gun and drugs are reliable evidence. The charges are very serious. Exclusion of the evidence would gut the prosecution’s case.

4. The Balancing

[65] The final balancing of these factors is not easy. The violation is serious. On the other hand, the impact is more moderate. The impact on the truth-finding process by the exclusion of the evidence would be significant. Consideration of the first two factors supports exclusion, but not in a compelling way. The third factor strongly supports admission.

[66] Balancing these factors, I conclude that the evidence should not be excluded. A reasonable person, dispassionate and fully apprised of the circumstances, would not conclude that the admission of the evidence could bring the administration of justice into disrepute.

[67] Like in Griffith, to exclude the evidence on these facts would serve only to punish the police instead of preserving public confidence in the rule of law and its processes.

[68] The application is dismissed.

E. TRIAL ON THE MERITS

[69] Before I get into it, I will say this for Mr. Bailey’s benefit. In deciding the trial, I will only consider the properly admissible evidence. I know we spent a lot of time on what the CS told D.C. Joshi. I will ignore it completely. It is not evidence. Judges have both training and experience in doing this. Mr. Bailey need not be concerned that somehow this information will creep into my decision-making.

1. The Evidence

[70] The evidence at trial has come in mainly through an ASF. It is simple. The ASF includes the police surveillance on January 4, 2019, and the fact that the CBPJ Honda and the CADZ Honda are registered to Novina Harris, at 519-11 Bergamot Avenue. In addition, the parties agree:

• In January and February 2019, the following people resided at 519-11 Bergamot Avenue:
  • Novina Harris;
  • Akeem Bailey, the accused;
  • Carlton Bailey, Akeem’s “younger” brother[^2] (born 1987);
  • Shaquille Brown, Akeem’s nephew (born 1994); and
  • Akelia Brown, Akeem’s niece and Shaquille’s twin sister.
• At no time prior to February 2, 2019 was Akeem Bailey ever seen operating or entering the CBPJ Honda.
• On February 2, 2019 at 9:13 p.m., police observed Mr. Bailey operating the CBPJ Honda on Martin Grove Road Northbound near Finch Avenue West and Albion Road. Police boxed the vehicle in and stopped it at 9:16 p.m.
• Mr. Bailey was arrested at gunpoint. The CBPJ Honda was searched pursuant to a search warrant. Mr. Bailey was the sole occupant of the vehicle.
• Inside the closed centre console, police located the following items:
  • A functional .40 calibre semi-automatic ‘Glock’ handgun, which is a prohibited firearm. It was loaded with 13 bullets. There was a bullet in the chamber.
  • A mixture containing fentanyl/carfentanil – 9.07 grams (valued at $80-$110/gram);
  • Cocaine – 15.48 grams (valued at $80-$110/gram); and
  • A functioning digital scale.
• The above items were not visible when the console was closed. The scale was on top of the firearm, and both were visible when the console was opened.
• Two additional functioning scales were located inside the closed glove box.
• Four cellular phones – 2x Samsung, 1x Nokia and 1x LG – were located in the vehicle. The owners of those phones are unknown. The phones were situated in the following locations:
  • Front passenger’s seat – black Samsung with dark grey case;
  • Front driver’s seat – blue Samsung and rose gold LG; and
  • Slot under radio – blue Nokia cell phone.
• Mr. Bailey had $1,500 in his pocket when arrested.
• The location where Mr. Bailey was arrested is approximately a 10-minute drive from 11 Bergamot Avenue.

[71] Some short videos of the guns, drugs, scales and phones were also made exhibits.

[72] The defence did not call any evidence.

2. Relevant Legal Principles

[73] The key issue in this case is proof of possession. Possession can be personal, constructive, or joint. Each form of possession requires some level of knowledge and control: s. 2 of the CDSA; s. 4(3) of the Criminal Code.

[74] Another important feature of this case is that the Crown relies upon circumstantial evidence to prove possession, in particular, the element of knowledge. This is not unusual in a case such as this. Evidence of knowledge can be proven by circumstantial evidence: R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), rev’d but not on this point [1988] O.J. No. 1877 (C.A.).

[75] Where the Crown’s proof is based upon circumstantial evidence, the inference of guilt from the whole of the evidence must be the only reasonable inference arising from the evidence or the absence of evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 35-36.

[76] In assessing this question, I must consider other reasonable possibilities based on logic and human experience but not speculation. The basic question I must answer is whether the circumstantial evidence, viewed cumulatively, logically, and in the light of human experience, is reasonably capable of supporting theories other than guilt.

[77] When assessing the inferences to be drawn, I must be mindful that the standard of proof beyond a reasonable doubt applies to the final evaluation of innocence and guilt and is not to be applied piecemeal to individual items of evidence: R. v. Wu, 2017 ONCA 620 at para. 15.

3. Analysis

[78] I have a reasonable doubt that the Crown has proven possession. Mr. Bailey’s guilt is not the only reasonable inference based upon the whole of the evidence. Using logic and human experience, there is a reasonable possibility that he did not know that the gun and drugs were in the CBPJ Honda.

[79] A number of factors leads me to this conclusion.

[80] To start, the gun and drugs were not plainly visible. They were in the center console of the car.

[81] I agree with the Crown that the proximity of the items to Mr. Bailey, who was in the driver’s seat, provides inferential evidence that he possessed them.[^3] Put another way, they were readily accessible to him from where he was seated. There is an admission, based on the quantity of the drugs and other circumstances, that any possession would be for the purpose of trafficking. Thus, the inference can be drawn from the location of the drugs that Mr. Bailey could have accessed those drugs to traffic them. The scale in the same compartment also supports this inference. Also, using common sense, the loaded firearm in the same place as the drugs were located could have been used by Mr. Bailey to protect himself in the course of illicit activities.

[82] That said, it is significant that the gun, drugs, and scale were not plainly visible. There were other scales in the car, but they too were not immediately visible. Thus, it remains plausible that Mr. Bailey could have been driving the car without knowing about these items.

[83] Of course, the phones in the car were visible. I appreciate the defence submission that some looked like older models and there is no evidence that the phones were functioning. On the other hand, the Crown points out that some of the phones looked like they were charging. I do not have expert evidence as to the use of phones and drug dealing. However, it does not require much expertise or experience to surmise that drug dealers use mobile phones to sell drugs and may well use more than one. I am aware of the limited inferences I can draw given that none of the phones were even examined to see if they were working. Also, I do not know who owned the phones. Certainly, their presence in the car is suspicious. And they were in plain view.

[84] There is the $1,500 found on Mr. Bailey at his arrest. Again, even without expert evidence — using human experience — guns, drugs, and cash just go together. On the other hand, I have not been told anything about the denominations of the bills that make up the $1,500 or how they were packaged. If they were small bills, that could more readily support an inference of street-level dealing. If they were large denominations, less so. Moreover, while I appreciate that the amount of cash is not insignificant, it is not so much that there could not be plausible and reasonable inferences other than drug trafficking. This was a Saturday night, not too late in the evening. While the cash is a link to the gun and drugs in the console — one that ties Mr. Bailey more directly to them — it is not a strong connection.

[85] There is no forensic evidence, such as fingerprints or DNA, tying Mr. Bailey to the drugs, gun, or scales.

[86] There are no personal items in the car belonging to Mr. Bailey that could tie him to the vehicle or his past use or occupation of the car.

[87] Similarly, there is no other evidence, except for what occurred the evening of his arrest, showing Mr. Bailey was a past user of the car. Certainly if there was surveillance or testimony from witnesses with knowledge that Mr. Bailey was a frequent or regular user of this car, this would more readily support the inference that the items in this car, whether visible or not, belonged to him.

[88] The only surveillance conducted by the police was a month prior, when Mr. Bailey accessed the CADZ Honda owned by his mother to get booster cables to help jump-start a female’s car. This is an innocuous event. Even then, Mr. Bailey was not seen driving this other car.

[89] The fact that Mr. Bailey was driving the CBPJ Honda, a car registered to his mother, on February 2, 2019 can reasonably support an inference that Mr. Bailey may have used the car on other occasions. A family member who is using a parent’s car on one occasion could well use the car on other occasions. That said, if there was greater evidence connecting Mr. Bailey to this car, it would make other reasonable possibilities, such as the possibility that the gun and drug belonged to someone else, less likely.

[90] Indeed, as pointed out by the defence, the police only saw Mr. Bailey in this car for about three minutes before they stopped and arrested him. During this time, they saw nothing suspicious about his behaviour or driving that could lend support to an inference that he was trafficking in drugs. Where he was stopped by the police, he was a ten-minute drive from his residence. As the defence rightfully pointed out, this circumstance can lend itself to the inference that Mr. Bailey was just using the vehicle to run a personal errand as opposed to trafficking in drugs. It was a weekend evening and not too late at night.

[91] In addition, there is no other evidence before, during, or after the arrest and finding of the gun that can further advance the inference that Mr. Bailey is a trafficker and, from that evidence, support a further inference that the contraband items were his or that he knew about them. For instance, there is no evidence of suspicious transactions or behaviour by him consistent with trafficking. There is no evidence of inculpatory driving or post-offence conduct.

[92] Then there is the significant gap in the evidence. I have heard no evidence from Novina Harris. I make no criticism of the Crown. There may be good reasons why Ms. Harris was not called. Nonetheless, she is the registered owner of the CBPJ Honda. From this fact, I can logically and readily infer that she uses and has access to the car. That is the whole point of car ownership. While it is possible she is only the registered owner in name and does not use the car much, without specific evidence, this inference is speculative.

[93] The Crown argues that the possibility the contraband belonged to Ms. Harris is unreasonable, because it is hard to envision a mother owning a gun or trafficking in hard drugs. Also, the Crown asks rhetorically, what mother would allow her son to drive a car with a dangerous loaded gun and valuable drugs concealed in the center console without him knowing about it?

[94] I acknowledge that it is a reasonable inference that a valuable or dangerous item like drugs or a gun would not be left unattended or be entrusted to anyone who did not know the nature of the contents of the container they are found in: R. v. Bains, 2015 ONCA 677 at paras. 156-157.

[95] However, I have no evidence from Ms. Harris, who owns the car and who is best placed to say who had access to the car and at what times. As the trier, I have had no chance to assess who Ms. Harris is, hear her testimony of whether the gun and drugs were hers, or whether she had other information from which I could infer to whom they might belong to. I had no chance to assess whether she is the kind of person who would permit her son to take the car without him knowing it contained these items.

[96] In addition, this case is very different from another scenario where a friend or an acquaintance is permitted to drive a car in which contraband is found. In that scenario, the person who actually owned a gun or drugs in a vehicle would be taking a significant risk that the friend or acquaintance who is given control of the car could inadvertently find them, with attendant consequences, which might include theft or a report to the police. Here, Mr. Bailey is a close family member. If the gun and drugs belonged to Ms. Harris or some other family member, it is less likely that Mr. Bailey, had he discovered them, would take those actions given the familial ties. Put another way, given their close personal relationship, someone might leave the items in the car without fear of theft or being “ratted out”.

[97] The defence argues that Mr. Bailey could well have taken the car for a short ride without knowing the items were in there. He could have taken the car and the true owner of the gun and drugs may have been unaware he had done so. In other words, the true owner of the contraband did not have a chance to remove them or object to Mr. Bailey taking the car with the contraband inside.

[98] To have evidence from Ms. Harris in these circumstances was important. To conclude that a mother would not own guns or drugs or that she would not have let her son drive her car without knowing those items were in it, is to operate on generalizations or stereotypes without any foundation in the evidence.

[99] Question: Would a mother do that? Answer: It would very much depend upon the mother.

[100] What I know from the ASF is that Ms. Harris owns two cars, lives with the accused and other adult family members, and, given the ages of her children, could be a woman in her fifties. I do not see this limited evidence precluding the reasonable possibility posed by the defence that the contraband belonged to Ms. Harris, who could have placed them in the car without the accused’s knowledge.

[101] In addition, I know that other adults live in the same home as Mr. Bailey. The defence submits that one or more of them could well have owned the gun and drugs.

[102] The ASF states that Mr. Bailey’s older brother and twin nephew and niece lived in the same home. Thus, there is some foundation and plausibility to the defence submission. However, unlike with Ms. Harris, the inference that the illegal items belonged to them moves more into the realm of speculation given there is no evidence that these individuals had access to or use of the car. This underscores the fact that it would have been very helpful to hear from the owner of the car about who had permission to use it, both in the past and in the time proximate to Mr. Bailey’s arrest.

[103] The reasonable possibility that Ms. Harris possessed the gun and drugs, and the less reasonable possibility that some other family member possessed them, is supported by the fact that Mr. Bailey was not far from home when stopped with these items in the car. This strengthens the possibility that he was not going too far or for too long, thus making it more plausible that someone who put the gun and drugs in the car may have been okay with Mr. Bailey taking the car without letting him know of its illegal contents. If Mr. Bailey had been found far from home or the circumstances were such that he was going to be away for a significant period of time, it would be less plausible that he would be driving around with someone else’s gun and drugs without their knowledge. In that case, it would be more plausible that the gun and drugs belonged to Mr. Bailey.

[104] Alternatively, I agree with the defence that it is also plausible that Mr. Bailey did not let anyone know he was taking the car. The fact that he lived in the same household would make it easier for him to have access to the car keys without telling anyone. Human experience tells me that it is not unheard of for adult children to take a parent’s car without their knowledge or consent.

[105] The accused did not call any evidence. I recognize that a strong cogent network of inculpatory evidence led by the prosecution can, in the absence of defence evidence, leave no foundation for a reasonable doubt: R. v. Lepage, 1995 123 (SCC), [1995] 1 S.C.R. 654. In other words, if the evidence cries out for an explanation and the accused does not explain, there is no hurdle to a finding of guilt.

[106] I find this is not the case here. The absence of evidence from Novina Harris creates a gap whereby a foundation is laid for a reasonable doubt. Not hearing from the accused does not render the reasonable possibilities outlined above speculative.

4. Review of Some of the Authorities

[107] It is trite to say that no two cases are exactly the same. Both the Crown and defence acknowledged this as they presented the authorities that they relied on. Nonetheless, they both pointed to similarities in those cases to the case at bar. They also distinguished the cases the other side relied on based on their facts.

[108] Having carefully considered those authorities, I find the cases relied on by the Crown to be distinguishable.

[109] In R. v. McIntosh, [2003] O.J. No. 1267 (S.C.), a gun and drugs were found in a cavity behind the glovebox of a car. Hill J. noted at para. 53 that in unlawful possession cases where the legal item is hidden or not readily visible in a vehicle driven by the accused, the courts have required more than their proximity to the accused. However, the Crown in that case called the evidence of the person who rented the vehicle to testify that the contraband did not belong to her and that she had loaned the car to the accused just prior to the seizure of the gun and drugs.

[110] In R. v. Bryan, 2013 ONCA 97, it was argued that the convictions were unreasonable because they were based merely on the appellant’s proximity to concealed drugs and money found in a rental car driven by the appellant. The Court of Appeal rejected this argument. The trial judge had rejected the evidence of a drug dealer who claimed that the drugs were his and that he had loaned the car to the appellant who did not know of the drugs. Based on the Crown’s evidence, the trial judge found that the appellant was in some fashion a party to the admitted drug dealer’s activity. In addition to the unlikelihood that a dealer would casually entrust the drugs to the appellant without his knowledge, there was evidence that while detained by the police, the cell phone the appellant had been using had received 10 missed calls consistent with calls from individuals seeking to engage in drug transactions. I observe that evidence of this nature is missing from the case at bar. Moreover, though the verdicts were not found to be unreasonable, the Court of Appeal characterized the Crown’s case as not “overwhelming”.

[111] The last case relied on by the Crown is R. v. Sealy-Ward, 2019 ONSC 2647, where the Crown’s circumstantial case was far stronger than the facts here. It included evidence from the appellant’s former partner that while the vehicle was registered under her name, it was owned by the appellant. Also, the duffle bag in the trunk of the car where the drugs were found had a combination lock on it and the code for that lock was found the appellant’s wallet. In dismissing the conviction appeal, the Court of Appeal alluded to the “overwhelming” nature of the inculpatory evidence: 2021 ONCA 714.

[112] Amongst the defence authorities, I find the case of R. v. Bjornson, 2018 ABCA 282 helpful.[^4] It shares some important similarities to the case at bar. The Alberta Court of Appeal allowed a conviction appeal. It found the trial judge’s decision to convict Mr. Bjornson for drugs found in a van to be unreasonable.

[113] The facts of that case were the following. Mr. Bjornson was not the owner of the van but was in the driver’s seat when the police arrested him for possession of a stolen licence plate that was found on the van. A search of the van before it was towed discovered methamphetamine in a sunglasses case, a pipe, some drugs in other locations, a scale, two cell phones, cash, and a knife. However, the Crown led no evidence as to whether the drugs or drug paraphernalia were hidden or in plain sight. The accused did not testify. The trial judge found that the accused had constructive possession of the drugs based on the circumstantial evidence.

[114] The Alberta Court of Appeal allowed the appeal and pointed to a number of problems with the trial judge’s conclusions. One was that there was no evidence as to whether the drugs were in plain sight or where they were found in the van. In addition, the Court held that the key problem with the finding of guilt was that during their investigation, the police found out who owned the van, but no evidence was presented about whether this owner “recently used the vehicle, accessed it or put anything inside it” (at para. 28). The fact that the defence could have cross-examined on this issue did not relieve the Crown of its onus of proof. Given that there was another person other than the accused who owned the van, combined with the lack of evidence about the location of the drugs and paraphernalia inside the van, there remained a reasonable inference that the contents of the van “belonged to the identified owner of the van and that the owner put them inside the van without the knowledge of Mr. Bjornson” (at para. 30). The Crown therefore faced an “uphill” battle to establish the accused knew of the presence of the drugs; while the Crown could rely on circumstantial evidence, “that evidence, or lack thereof, has to close the doors on reasonable possibilities that the seized materials belonged to someone else.” In that case, “some doors remained open” (at para. 31).

[115] In Mr. Bailey’s case, the facts are somewhat stronger from the prosecution perspective in that there is evidence of proximity. However, here the evidence is clear the contraband was not in plain view. More importantly, like Bjornson there is the absence of evidence from the owner of the vehicle, Ms. Harris. This absence played a key role in the Alberta Court of Appeal’s decision in Bjornson to overturn the convictions. Similar to Bjornson, I find that in the totality of the circumstances, the absence of evidence from Ms. Harris remains an “open door” that the Crown has not closed.

5. Disposition

[116] In the final analysis, Mr. Bailey has come close to being found guilty. Using common sense and logic, a man found in these circumstances with a gun and drugs in the center console of the car he is driving is likely to have known of their existence and therefore be in legal possession of them.

[117] However, this is not the only reasonable possibility on the whole of the evidence. The gun and drugs were not visible. There is no strong evidence connecting him to these items except his proximity to them. The visible presence of multiple phones in the car are merely suspicious. The car was not his. I have no evidence about his past use of the car. He was just driving this car on this one occasion. I do not know about other people’s use or access to the car. I do know the car belonged to Mr. Bailey’s mother, Ms. Harris. It is a logical inference based on human experience that a person who owns a car uses it, puts things in it, and gives permission to others to use it or put things in it. Yet I have not heard at all from this significant person. This absence of evidence does not lead to merely speculative inferences. The reasonable possibility that the items could belong to Ms. Harris, as the owner of the car, is a logical and common-sense inference that arises from the ASF and from the failure of the Crown to call her at this trial. The burden on the Crown is proof beyond a reasonable doubt. In these circumstances, logically and using human experience, it remains a reasonable possibility that someone else put the guns and drugs in the car without Mr. Bailey’s knowledge. Not likely — but reasonably possible based on the whole of the evidence, bearing in mind the onus on the Crown.

[118] Mr. Bailey should be found not guilty of all the charges relating to the possession of the gun and drugs.

[119] Mr. Bailey was found in personal possession of $1,500. However, in the absence of evidence establishing his possession of the gun or drugs, there is no probative evidence proving that this sum of money was proceeds of crime. He will be acquitted of this count.

[120] I should also note that there was no evidence in the ASF supporting count 12 that he possessed $4,602 which was also alleged to be proceeds of crime.

[121] All the charges are dismissed.

JUSTICE S. NAKATSURU

Released: December 16, 2021

COURT FILE NO.: CR-19-90000661-0000 DATE: 2021-12-16

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – AKEEM BAILEY Defendant

REASONS FOR JUDGMENT JUSTICE S. NAKATSURU

Released: December 16, 2021

[^1]: While the records indicate Bergamot “Road”, the ITO by using Google Maps shows that it should be Bergamot “Avenue” and the records are mistaken.

[^2]: Although the ASF indicates that Carlton Bailey is the accused Akeem Bailey’s “younger” brother, this is incorrect; Carlton Bailey is the “older” brother, as Akeem Bailey was born in 1989.

[^3]: Though I observe that in R. v. Iturriaga, 1993 2517 (BC CA), [1993] B.C.J. No. 2901 (C.A.) at para. 9, Prowse J.A. noted that the fact that the accused is driving a car where there are concealed drugs within arm’s reach, without more, cannot justify a conviction.

[^4]: I have also considered the other cases provided by the defence, R. v. Freeman, unreported, March 3, 2017, C39196; R. v. Lincoln, 2012 ONCA 542, [2012] O.J. 3872 (C.A.); R. v. Knight, 2019 ONSC 2443.