Court File and Parties
Court File No.: CR-21-90000057-0000 Date: 20220311 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – John Moore Defendant
Counsel: Bari Crackower and Eli LoRe, for the Crown Paul Genua, for the Defendant
Heard: January 17- 20 and 24 to 27, 2022
Low J. (Orally on March 4, 2022)
Reasons for Judgment
[1]
Introduction
On consent, the defence application to exclude crown evidence under s. 10(b) and s. 24(2) of the Charter and the trial proper were heard blended in a judge alone trial following dismissal of the defendant’s application to exclude the physical evidence under s. 8 and s. 24(2) of the Charter.
2The defendant is charged with possession of cocaine for the purpose of trafficking, possession of fentanyl for the purpose of trafficking, possession of heroin/carfentanil for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, two counts of failure to comply with recognizance and breach of a s. 109(1) weapons prohibition.
[3]
Background
This prosecution has its origins in what was primarily a gun investigation. The investigation arose out of a 911 call following an interaction that took place on July 20, 2019 between the complainant, Michelle Sophocleous, and a person she described at trial as a black male with tattoos whose real name she did not know but who had said his name was Jason.
4Ms. Sophocleous met the male on that day at the home of her friend who lived in an apartment on the sixth floor of 3735 Dundas Street West. She had gone to her friend’s home to socialize. She and the male had an interaction and she accompanied him to an apartment that she described as a couple of floors up from her friend’s apartment. The male indicated to her that it was his girlfriend’s place. Ms. Sophocleous and the male were in the apartment alone. In the kitchen, the male opened a cupboard and showed Ms. Sophocleous a loaded handgun and what she termed a “big-assed bag of fentanyl”.
5Ms. Sophocleous was concerned by what she had been shown. She made a 911 call to police on July 22. She was interviewed by Officer Downey at which time she gave a description of the male to the officer. The officer went into the police data base of mugshots going back several decades to try to find a match to the descriptors. That search yielded only two photographs. Ms. Sophocleous identified the individual in one of the two photographs as the male with whom she had the interaction on July 20. The photograph was of John Moore. On the basis of that identification and inquiries of the building management based on the description of the location and of items seen in the interior of the unit by Ms. Sophocleous, police learned that a woman named Linda Smith-Jacko was the lawful tenant of unit 803 and that she resided there with her daughter. Police commenced an investigation of John Moore and unit 803 at 3735 Dundas Street West.
6Further research within police data bases showed that at that time, Mr. Moore was bound by a recognizance arising out of an order dated June 25, 2019 of the Ontario Court of Appeal. Conditions of the recognizance prohibited him, with limited exceptions, from being out of the place at which he was required to reside (21 Redvers Street, Whitby), unless in the presence of his surety; they prohibited him from possessing unlawful substances and prohibited him from possessing weapons, including ammunition.
7A police door knock at unit 803 on August 2 yielded no response other than the bark of what seemed to the officers to be that of a large dog.
8On August 4, a second door knock by police was answered by an unidentified male who advised that Ms. Smith-Jacko was not home.
9As officers were leaving the building that day at about 3:22 p.m., Mr. Moore was observed entering the building, walking a large dog and carrying a pizza box. A scorpion tattoo, a significant descriptor of the suspect that police were seeking, was observed on his neck and the officer making the observation, Officer Ethier, was able to identify Mr. Moore from a file photograph of him. From the lapse of time since his entry into the building, his absence from the elevator whose occupants were visible to them and the position of the other elevator at the 8th floor, the officers inferred that Mr. Moore had proceeded to the 8th floor.
10A search warrant for unit 803 was obtained. As appears in Appendix A to the search warrant, what was sought was a firearm and ammunition.
11In the mid-afternoon of August 5, Officers Steel and Cowley watched live video feed from the common area cameras of 3735 Dundas Street West. They did so from the security room located on the main floor of the building. Officer Steel was also able to see Mr. Moore from the window of the security room as Mr. Moore exited a passenger seat of an automobile at the front of the building. With him were a male and a female.
12The elevator video feed showed Mr. Moore and the female enter the elevator of 3735 Dundas Street West and proceed to the 8th floor where they exited and turned left, the direction of unit 803. Mr. Moore had with him a red “SUPREME” branded backpack. Mr. Moore and the female reentered the elevator on the 8th floor a short time later and proceeded to the main floor. They returned to the automobile from which they had emerged. The female departed in the car and Mr. Moore reentered the building.
13At about 3:59 p.m., Mr. Moore was observed on security cameras proceeding to the 8th floor, exiting the elevator and turning left, the direction of unit 803. Following this, Officer Foster, surveilling the building from the exterior, saw Mr. Moore standing on the balcony of unit 803.
14About an hour later, on the security camera live feed, police officers saw Mr. Moore taking laundry into the elevator from the 8th floor to the laundry room on the main floor.
15At 4:58 p.m., according to Officer Ethier’s notes, the call was made for the arrest of Mr. Moore. The execution of the search warrant for unit 803 was to be conducted immediately thereafter.
16Mr. Moore was arrested by Officers Ethier and Steel in the laundry room. He was initially placed under arrest for failure to comply with bail conditions.
17Search of Mr. Moore incident to arrest yielded a quantity of what appeared to be crack cocaine and a substantial amount of Canadian currency which, at the time, the arresting officer suspected was proceeds of crime. Officer Ethier advised Mr. Moore that he was also going to be charged with possession of a Schedule1 substance and proceeds. He advised Mr Moore of his rights to counsel and cautioned him. He also advised Mr. Moore that a search warrant was going to be executed on the apartment.
18Mr. Moore indicated that he understood. He stated that he had a lawyer of his own and that he did wish to speak with him and to make other calls too. The officers advised that arrangements would be made for his calls once at the station. I find that there was no opposition to this by Mr. Moore. Mr. Moore was an experienced arrestee. Officer Steel put the articles removed from Mr. Moore’s person into his baseball cap and advised him that he would return the articles and his laundry to the apartment for him.
19Mr. Moore was distressed and asked to be taken outdoors so that he could breathe better. Officers Ethier and Steel tried to make him comfortable, encouraged him to concentrate on breathing and helped him to drink some water from a fawcett.
20Officer Foster entered the laundry room very shortly following the arrest. He took the keys found on Mr. Moore and used one of them to open the door to unit 803, thus avoiding a destructive entry by the Emergency Task Force which had been put in readiness to do so.
21The dog was secured. There is no evidence that anyone else was in unit 803. No firearm was located upon an initial search of the unit.
22At Mr. Moore’s request, Officer Ethier and Officer Kuz took him outdoors. They waited at the front of the building for instructions for transport.
23Search of the apartment turned up what was later tested and weighed out to be a total of 58.79 grams of fentanyl, 28.26 grams of methamphetamine, 4.09 grams of cocaine, 1.05 grams of heroin/carfentanyl, and a variety of ammunition. The drugs were in plain sight on the kitchen counter although contained in plastic baggies within a ziplock bag. A quantity of cutting agent was also located in the apartment as was a taser.
24Two rounds of ammunition were located in plain sight on a bedroom dresser. A larger quantity of ammunition was contained in a red “SUPREME” branded backpack resting on a chair in the dining area and more ammunition was contained in a purple “Crown Royal” cloth whisky bag within a denim tote bag in the hall closet which was overflowing with chattels.
25In the living room was a copy of a recognizance of bail for John Moore and a certified copy of an order of the Court of Appeal of Ontario in the matter of an appeal by John Moore.
26At approximately 5:07 p.m., Officer Hunter, the lead investigating officer who had been taking part in the execution of the search warrant in unit 803, came out of the building and advised Mr. Moore that he was also being charged with possession for the purpose.
27At that time Officer Hunter instructed Officer Ethier that Mr. Moore could be transported and that that his calls were to be put on hold until the major crime unit says it is ok.
28In the minutes following arrest and after being cautioned and advised of rights to counsel, Mr. Moore, made a number of utterances. He stated that he had asthma but that his medication was not upstairs because he did not live there. He said that his medication was in Whitby. He said that it was his daughter’s birthday that weekend. He told the officers that a dog was in the unit but that it was friendly. He also expressed repeatedly and using profane language, that he was in a lot of trouble. He said that there was fentanyl in the unit.
[29]
Voluntariness of Utterances
The crown has sought a voluntariness ruling for the latter two utterances. Defence does not concede but has not challenged voluntariness. I have heard from all of the officers who had contact with Mr. Moore and I am satisfied beyond a reasonable doubt that Mr. Moore’s utterances were voluntary. There were no inducements and no threats, no atmosphere of oppression whether verbal or physical, and no lack or deficiency of an operating mind. I am satisfied that the utterances were made after Mr. Moore was cautioned of his right to silence and advised of rights to counsel. I am satisfied that the utterances were spontaneous and self-generated.
30That said, I am of the view that the utterances do not add significantly to the weight of the evidence in the trial proper.
[31]
Charter Application
The main thrust of the defence is that all of the physical evidence and the utterances should be excluded because there has been a violation in the implementation phase of the defendant’s s. 10(b) rights to consult counsel without delay.
32With respect to the physical evidence seized pursuant to the search warrant, it is acknowledged that there is no causal connection between delay of Mr. Moore’s phone calls and the discovery of the drugs and ammunition. It is argued, however, that because there is some temporal proximity, the proper judicial response to the s. 10(b) breach should be to exclude all of the physical evidence and the utterances.
[33]
Timeline of Events
The time line appears to be as follows:
34Arrest took place at or about 5 p.m. on August 5, 2019. Upon arrest, Mr. Moore was given rights to counsel and was cautioned. He answered that he did wish to speak to a lawyer, that he had his own, and that he wished to make other calls as well. At that time there was no inquiry as to the name of the lawyer. Mr. Moore was advised that his calls would be arranged once he was taken back to the station. He was taken outside to the front of the building by Officers Ethier and Kuz to await instructions for transport.
35At or about 5:07, Officer Hunter came out and told Mr. Moore that he was also facing possession for the purpose charges. He directed Officer Ethier that Mr. Moore’s calls were to be put on hold until the Major crime unit says it is all right. Mr. Moore heard this direction being given.
36A firearm, the genesis of the investigation, had not been located.
37Mr. Moore was then transported to 11 Division. Between 5:34 and 5:45 p.m., Mr. Moore was in the booking hall before the desk sergeant at 11 Division.
38The sergeant spoke with him, advised him of the charges against him and of his rights to speak to his own lawyer if he had one or duty counsel if he did not. Mr. Moore did not at that time state that he wanted to speak to a lawyer. Mr. Moore did not say at that time that he had a lawyer of his own. He did not mention a lawyer’s name, whether in full or by surname or by given name only. He did not ask to speak to anyone else. The sergeant advised Mr. Moore that he would have reasonable use of the phone while at the station. There was no discussion concerning a hold on his calls
39The sergeant made inquiries concerning Mr. Moore’s health and condition. Mr. Moore advised that he had pneumonia, that he was very cold and needed some more clothing. He and the sergeant had a discussion about the whereabouts of his medication and about getting his medication. He disclosed some of his mental health history to the sergeant and advised that he was all right and would be no trouble. He was given a level 3 search at 5:45 which was completed by 5:49. He was provided with a white “bunny suit”, and then placed in a cell.
40Some time between 5:49 and 7:10 p.m., Mr. Moore was taken by ambulance to hospital at his request. Mr. Moore had complained of chest pains and breathing difficulty. At 7:10 p.m. a uniformed officer announced to the desk sergeant that Mr. Moore had been taken to Toronto Western Hospital.
41Mr. Moore did not testify on the trial proper but he did testify for purposes of the s. 10(b) application. He stated that over and over again, he told officers that he wanted to talk to Paul. (Paul is the given name of his lawyer at trial.) He testified that while he was in the locked room, he tried to get the attention of an officer so that he could call Paul and was either ignored or brushed off with a response that it would have to be cleared with someone else.
42For purposes of determining whether s. 10(b) was breached in these circumstances, it is not necessary to make a finding as to whether Mr. Moore told officers that he wanted to talk to Paul. The argument that a repeated request or demand to call “Paul” was denied and that the denial constituted a blatant disregard for Mr. Moore’s rights to counsel is an idle one here because Officer Hunter, the officer in charge of the investigation, had given the direction to hold his calls until major crimes unit said it was all right. Mr. Moore’s calls were going to be suspended whether he made an explicit demand to place a call or not.
43The contention is not compelling or sensible in any case. If Mr. Moore, wanted to speak to a lawyer, insistence on speaking to “Paul” would not reasonably have assisted. There is no reasonable basis for Mr. Moore to have assumed that anyone would know who “Paul” was. Further, if, as Mr. Moore testified, his demands were made repeatedly to a number of different officers, it would more likely than not have been the subject of an officer’s note. The defence had an opportunity to cross-examine all of the officers known to have interacted with Mr. Moore, and this was never put to any of them. Most significantly, when the hold on his calls was lifted, there is no reliable independent evidence that he asked to speak to “Paul”, gave Paul’s last name, gave an indication of who Paul was or most importantly, that he gave his telephone number to police to place the call. I reject Mr. Moore’s evidence that he over and over again asked to call Paul.
44Officer Hunter was the officer who made the decision to suspend Mr. Moore’s calls.
45I found Officer Hunter to be a credible witness and his evidence was not diminished on cross examination.
46I find that the placing of a hold on Mr. Moore’s calls was not rooted in a general police practice directed at achieving mere efficiency and ease of police investigation. I find that it was not the product of a systemic ignorance or cavalier disregard of an accused’s rights. There was a specific and articulable basis, grounded in concerns for officer and public safety and in prevention of loss or destruction of evidence, for suspending Mr. Moore’s calls.
47When the direction was first given, only a cursory search had been done in unit 803 and a loaded gun which had launched the investigation had not been recovered. The execution of the search warrant was ongoing. In my view, it was reasonable to have suspended Mr. Moore’s calls until the firearm search was completed.
48The location of drugs in unit 803 was corroborative of the complainant’s report to police as was the discovery of ammunition. The firearm itself, however, was not found in the unit as police expected. There was therefore a public and officer safety concern arising out of the existence of a loaded handgun which was at that time unaccounted for in circumstances where the suspect, Mr. Moore was known to be associated with two other addresses, one in Whitby and one in Scarborough. There was also a legitimate concern as to the potential loss of critical evidence should Mr. Moore’s telephone communication with a solicitor or other person result in the removal or concealment of the gun. The sequelae of a telephone communication cannot be controlled.
49Officer Hunter left 3735 Dundas Street West at about 6:06 p.m. From 7 p.m. to approximately 7:05 p.m, the officers involved in the arrest and execution of the search warrant had a debriefing at 11 Division. Thereafter, Officer Hunter proceeded to prepare the material to seek and obtain a search warrant for the other two addresses known to be associated with Mr. Moore, 21 Redvers Street, Whitby and 225 Scarborough Golf Club Road, Scarborough.
50Defence argues that search warrants should have been obtained for these addresses at the outset. I disagree with that argument as there was, in my view, insufficient basis for a search warrant to issue in respect of the addresses in Whitby and Scarborough in the absence of the information arising out of the execution of the search warrant at unit 803 at 3735 Dundas Street West.
51I find that police acted with reasonable dispatch in seeking and starting to implement the two additional search warrants following the discovery that the gun, which they had good reason to believe would be found in unit 803, was not there.
52Evidence was adduced as to the preparation for execution of the search warrant for 21 Redvers Street in Whitby. Officer Foster testified that he attended at the address and observed that there was a large party going on at the residence. At about 10:30 p.m. he had a communication with Officer Hunter. It was determined that execution of the search warrant was not practicable at that time in those circumstances. Officer Hunter called for postponement of the execution of the search warrant until the following day.
53I find that Officer Hunter was alive to the issue of delay in allowing Mr. Moore his phone calls and access to counsel. He was sensitive to the balance between the rights of the accused to have access to counsel and the interests of locating an illegal firearm and preserving evidence. He formed the opinion that the delay that would result from waiting till the next day so that the search warrant could be executed would not be justifiable when weighed against Mr. Moore’s rights to have access to counsel if he wished, and he rescinded the hold on Mr. Moore’s calls at some time between 10:07 p.m. and midnight when he went off shift.
54At that time Mr. Moore was still at the hospital being assessed and investigated for possible ingestion of foreign substances. He was in acute bay 7 at the Toronto Western Hospital awaiting a CT scan. The scan was not done until just after 1 a.m. on August 6.
55The release of the hold on Mr. Moore’s calls was communicated by a member of the major crimes unit to Officer Baroudi who came on shift at 11 pm and, with his escort, was instructed to relieve the officers in attendance with Mr. Moore at the hospital.
56Officer Baroudi received instruction by telephone from the major crimes unit at about 11:50 p.m. He was advised of the charges that Mr. Moore was facing and that Mr. Moore could now make whatever calls he wanted. He advised Mr. Moore of the charges against him and again gave him rights to counsel. When Officer Baroudi asked whether he wished to speak to counsel now, Mr. Moore’s reply was “Nah. Later.”
[57]
Analysis of the Section 10(b) Issue
The s. 10(b) application turns on the appropriate characterization of the decision to put Mr. Moore’s calls on hold and whether it was justified in these circumstances. It engages the criteria in R. v. Rover, 2018 ONCA 745 at paras 24 to 29.
58Second, if the suspension of implementation of Mr. Moore’s right of access to counsel was justified, was there nevertheless a period of unjustified delay following rescission of the hold?
59The conditions under which a delay in implementing access to counsel would be justified are stated in paragraphs 26 to 28 of Rover:
26The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence. For example, in R. v. Strachan, [1988] 2 S.C.R. 980, [1998] S.C.J. No. 94, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see, e.g, R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (S.C.J.), at paras.71-75.
27These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access 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 when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see, e.g., R. v. Patterson, 2006 BCCA 24, 206 C.c.c. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734 (S.C.J.), at paras. 67-71; Learning, at para.75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101 (S.C.J.), at para. 78.
[28] Wu, at para. 78, provides a helpful summary of the law. That summary includes the following: The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment: a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate. (Emphasis added)
60In my view, the police in the case at bar had a reasoned and fact specific justification for suspending Mr. Moore’s access to counsel to permit a second step, namely issuance of search warrants for two additional locations connected to the defendant, not available to police in the first instance, to locate the firearm that had set the investigation into motion.
61It is significant that the investigation and the search was for a loaded handgun. As noted earlier in these reasons, the information that led to the search warrant being issued was credible and was supported by the discovery of a significant quantity of ammunition in the place searched. The absence of the firearm in the unit where it was expected to be found and the existence of two other addresses known to be associated with Mr. Moore raised, in my view, genuine concerns for officer and public safety and loss or destruction of evidence. I do not suggest that the latter concerns will invariably justify a delay in granting access to counsel. Clearly there is a significant difference in the degree of safety concern posed by, for example, a bomb, as opposed to, say a quantity of cocaine. Similarly, there is a significant difference in the gravity in loss of such evidence. In the case at bar, however, I am satisfied that the nature of the contraband, a loaded gun reasonably inferred to be connected with trade in schedule 1 substances including fentanyl and heroin, justified the suspension of access to a lawyer for the time it took to obtain the new search warrants and to execute them.
62In my view, the case at bar raises a similar degree of legitimate concern for officer and public safety and evidence preservation as that in R. v. Griffith, 2021 ONCA 302 at paras. 45-46 where the delay was held justified.
63As well, I find that the suspension of Mr. Moore’s telephone access and thus his access to counsel was not a matter of routine police practice as was the case in Rover; nor was it the result of individual or institutional disregard or ignorance of the charter rights of an accused person. Mr. Moore was treated with respect and civility.
64I find that in responding “Nah, later” to Officer Baroudi’s inquiry whether he wanted to speak to a lawyer now, Mr. Moore voluntarily and expressly deferred his right to access counsel to a later time. There is no serious dispute that he made that response and that the response was, given the situation in which Mr. Moore was at the time, the rational and understandable response. I find that he knew that he would be accorded use of the telephone at the station and that in the meantime, he was in a treatment bay in the hospital with no privacy. He was also still in the process of being medically assessed and investigated.
65Mr. Moore was not discharged from the hospital until 1:56 a.m. on August 6. He was paraded at 2:22 a.m. before the booking sergeant.
66At the booking, Officer Baroudi is heard to say, in part to the booking sergeant, and in part inquiring of Mr. Moore, words to the effect of “he doesn’t want to speak to a lawyer, he wants to speak to his aunt?” Mr. Moore agreed with that. A few seconds later, the booking sergeant is heard to inquire of Mr. Moore to confirm that he does not wish to speak to duty counsel. Again, Mr. Moore agrees.
67I infer that between the time Mr. Moore answered “Nah, later” in response to Officer Baroudi’s question as to whether he wishes to talk to a lawyer now and the time that he appeared before the booking sergeant, Mr. Moore had communicated to officer Baroudi that he does not want to speak to a lawyer but that he does want to speak to his aunt.
68There is no other reasonable explanation for Officer Baroudi relating this to the booking sergeant in a manner that indicates that he is also seeking confirmation from Mr. Moore that Mr. Moore has expressed a wish not to speak to a lawyer at that time but rather to his aunt.
69This is consistent with the calls subsequently placed for Mr. Moore, one of which is to his aunt’s number, the other of which is to duty counsel at about 3:16 a.m. morning. I do not accept Mr. Moore’s evidence that he did not want to speak to his aunt because she could not “do anything for” him, and I reject his evidence that he spoke briefly to his aunt only because police officers had, of their own volition, and because they had found her telephone number on his bail papers that were at the apartment, contacted her and passed the telephone to him. That scenario is wholly implausible and unbelievable.
70I find that Mr. Moore waived his right to call his lawyer without delay when he appeared before the booking sergeant at 2:22 a.m. Mr. Moore was a sophisticated arrestee. He knew his rights. The concerns he raised with the booking sergeant had to do with his being cold, with his desire to be given additional clothing, and with his earring. I find on the basis of the video recording of his appearance before the booking sergeant that he agreed on both occasions when he was asked to confirm that he did not want to speak to a lawyer. While de facto he did not speak to a lawyer until later in the morning, the fact that there was a delay does not in itself constitute a breach of s. 10(b) in the circumstances (see R. v. Sinclair, [2010] 2 S.C.R. 310, 2010 SCC 35 at para 28). In this case, I find the delay was waived.
71Defence argues that there was no effective waiver because a warning had not been given in accordance with R. v. Prosper, [1994] 3 S.C.R. 236. In my view, the need to advise of the consequences of waiver of right to consult counsel that were engaged in Prosper is not present here and Prosper does not apply. The Prosper requirement to warn arises in a scenario where a proposed cooperation with police or a conscriptive procedure is impending, and, a fortiori where, as under the breathalyzer legislation, a double edged sword is involved. In the case at bar, no issue of cooperation with police arises. There was no impending conscriptive procedure which waiver could impact. Nor was there a proposed questioning wherein information would be sought to be elicited from the defendant.
72For the foregoing reasons, I find that there has been no breach of Mr. Moore’s s. 10(b) rights and I would dismiss the application to exclude the evidence found pursuant to the search warrant and the utterances sought to be tendered by the crown.
[73]
The Trial Proper
On the trial proper, I am satisfied that Mr. Moore had knowledge of and some degree of control over the drugs located in the kitchen of unit 803 and over the ammunition located on the bedroom dresser and in the red SUPREME backpack. The identity and quantities of the drugs were as set out in exhibit 19 on the trial proper. There is no dispute in that respect. There is no dispute that the bullets found in unit 803 were ammunition.
74Mr. Moore was seen on the balcony of the unit approximately an hour prior to the arrest. On arrest, he was in possession of a key that opened the door to unit 803. His dog was in the unit. His bail papers were in the unit. He was in the unit for an hour prior to the arrest. Earlier in the day he was seen in security video feed with the red backpack which was later found on the execution of the search warrant to contain multiple rounds of ammunition.
75All of the drugs were in plain sight. That they were contained in plastic baggies within a plastic ziplock bag does not derogate from their being in plain sight on the kitchen counter. I am satisfied that the drugs belonged to Mr. Moore, but even if they were not his property per se, I am satisfied beyond reasonable doubt that he had knowledge of their presence in unit 803.
76I am not satisfied, however beyond a reasonable doubt that Mr. Moore had knowledge of the ammunition in the purple crown royal cloth bag. Although he was a sufficiently trusted visitor to have been put in possession of a key to the apartment, he was not a resident of the unit and an unknown male was in the apartment shortly prior to the date of the search.
77I am satisfied that as at August 5, Mr. Moore was bound by the recognizance ordered by the Court of Appeal order of June 25, 2019. He was out of the residence, 21 Redvers Street, Whitby, where he was ordered to reside and he was not in the company of his surety. In contravention of the recognizance, he was in possession of Schedule 1 substances.
78I am satisfied beyond a reasonable doubt that he was in breach of the recognizance in those two ways as well as by being in possession of ammunition.
79As I have found Mr. Moore in possession a quantity of ammunition, he was in accordingly also in breach of the s. 109(3) order of Dube J. dated February 25, 2011.
80No evidence was led to support the allegation that the drugs found on execution of the search warrant or on his person were in Mr. Moore’s possession for the purpose of trafficking. There is a concession however that, with the exception of the cocaine, if possession is proved, it was for the purpose of trafficking.
[81]
Disposition
I therefore find the defendant guilty of the lesser included charge of possession of cocaine on counts 1 and 2.
82I find Mr. Moore guilty on count 3 of possession of fentanyl for the purpose of trafficking.
83I find Mr. Moore guilty on count 4 of possession of fentanyl for the purpose of trafficking.
84I find Mr. Moore guilty on count 5 of possession of heroin/carfentanyl for the purpose of trafficking.
85I find Mr. Moore guilty on count 6 of possession of methamphetamine for the purpose of trafficking.
86I find Mr. Moore guilty of count 7 of breach of condition in a recognizance by being out of his residence and not in the company of his surety but not within the exceptions provided in the recognizance.
87I find Mr. Moore guilty on count 8 of breach of condition in a recognizance prohibiting possession of a controlled substance other than pursuant to a medical prescription.
88I find Mr. Moore guilty on count 9 of breach of a weapons prohibition under s. 109(1) of the Criminal Code.
Low J.
Date of Oral Reasons: March 4, 2022 Released: March 11, 2022