Court File and Parties

COURT FILE NO.: CR-20-91705 DATE: 20220422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – OLIVER OPPONG KWAFO

Counsel: Chris Leafloor and Sarah Malik, for the Crown Paula Rochman, for Oliver Oppong Kwafo

HEARD: March 21-22, 2022

Reasons for Judgement

P.J. Monahan J.

[1] Oliver Kwafo was tried before me, sitting without a jury, on the following charges: (i) possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”); (ii) possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and (iii) possession of proceeds of crime of a value not exceeding $5000, contrary to ss. 354(1)(a) and 355(b) of the Criminal Code.

[2] It is agreed that at the time of Mr. Kwafo’s arrest on December 2, 2018, the police found fentanyl and cocaine, as well as a digital scale, in Mr. Kwafo’s car. He was also carrying $675 in cash in small bills.

[3] Mr. Kwafo concedes that if it is determined that he was in possession of the fentanyl and cocaine seized from his vehicle, then he possessed those drugs for the purpose of trafficking. However, Mr. Kwafo maintains that he had no knowledge of the drugs that were found in his vehicle. Since possession of a thing requires knowledge of as well as control over the thing possessed, Mr. Kwafo argues that, since he did not know about the drugs, he did not legally possess them.

[4] For the reasons that follow, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Kwafo knew about the drugs that were found in his car. Accordingly, I find him not guilty of the three offences with which he is charged.

Overview of the Case

[5] This case arose out of what began as a routine traffic stop for a suspected Highway Traffic Act offence on the evening of December 2, 2018.

[6] Shortly after 6 PM that evening, Toronto police constables Jeremy Krause (“Krause”) and Mark Haljaste (“Haljaste”) were patrolling in a marked scout car on Jane Street just south of Finch Avenue when they noticed a blue Mazda 3 sedan (“Mazda”) idling in a driveway. When they ran the license plate for the Mazda, they learned that the registered owner was Oliver Kwafo and that Mr. Kwafo’s driver’s license had been suspended.

[7] While the police officers were running these checks on the Mazda, the vehicle had pulled out of the driveway and travelled north to a nearby apartment building located at 2900 Jane Street, where it stopped in a roundabout in front of the building. The officers pulled up behind the Mazda and spoke with the driver, who identified himself as Oliver Kwafo. After some discussion, described more fully below, the officers issued Mr. Kwafo a provincial offenses (POA) notice for driving while suspended.

[8] After receiving the suspension notice, Mr. Kwafo pulled out of the roundabout and headed north on Jane Street. The officers followed him and within a few moments observed the Mazda parked in front of a convenience store in a nearby shopping plaza. As the officers drove up in their scout car, they observed Mr. Kwafo exiting the convenience store and heading back to his vehicle. At this point the officers arrested Mr. Kwafo and charged him with Driving While Under Suspension.

[9] Through a subsequent search of the Mazda, police officers located a scale under the driver’s floor mat, and plastic baggies containing 11.51 grams of fentanyl and 22.21 grams of cocaine hidden behind a panel in the driver’s area of the vehicle. Mr. Kwafo also had $675 cash in his wallet and in the console beside the driver’s seat in the Mazda. As a result, Mr. Kwafo was charged with the offences described in paragraph 1 above.

The Evidence

a. Crown Evidence

[10] The only issue at trial was whether Mr. Kwafo had knowledge of the fentanyl and cocaine that was seized from his vehicle on December 2, 2018. The Crown sought to establish beyond a reasonable doubt that he had such knowledge based on the testimony of four police officers who were involved in Mr. Kwafo’s arrest. The Crown also tendered in car camera (ICC) video from a police scout car which captured the interactions between the police officers and Mr. Kwafo that evening, as well as a series of photographs which depicted the motor vehicle, the items seized, and their location within the vehicle.

i. Evidence of Krause

[11] As noted above, Krause and Haljaste were the officers who initially stopped Mr. Kwafo outside the apartment building at 2900 Jane Street. During their interaction, Krause explained to Mr. Kwafo that he had been stopped because he was driving a motor vehicle while his driver’s license was suspended due to some unpaid fines. Mr. Kwafo insisted that he had paid all of his fines and that he did not know anything about his license having been suspended. Mr. Kwafo attempted to hand over some papers which showed that his fines had been paid and that his driver’s license was valid.

[12] Krause returned to his scout car and confirmed that according to MTO’s then-current records, Mr. Kwafo’s driver’s license was suspended. Krause then issued a POA notice and required Mr. Kwafo to hand over his driver’s license. Krause also told Mr. Kwafo that he was not allowed to drive and that if he was stopped while driving on a highway, he might be issued another suspension notice. Mr. Kwafo handed over his driver’s license as instructed and thanked Krause.

[13] Krause regarded Mr. Kwafo as having been friendly and polite and did not observe anything out of the ordinary during the initial traffic stop. Krause expected that Mr. Kwafo would pull his car forward, park in the apartment building’s parking lot and leave his vehicle. Instead, Mr. Kwafo pulled out of the roundabout and headed north onto Jane Street. Krause and Haljaste followed in their scout car. Although they lost sight of the Mazda for a few moments, they sighted it parked in front of a convenience store in a nearby shopping plaza. They drove up in front of the convenience store and exited the scout car, at which point they observed Mr. Kwafo walking out of the store holding a can of pop.

[14] The two officers approached Mr. Kwafo and placed him under arrest for driving while his license was suspended. Mr. Kwafo objected, arguing that Krause had merely told him that he could not drive on a highway. Mr. Kwafo said that Jane Street was not a highway and so he hadn’t done anything wrong. The officers told him that since his license was suspended, he was not allowed to drive on any roads, not just on highways.

[15] Haljaste handcuffed Mr. Kwafo, searched him and led him back to the scout car, while Krause commenced a search of the Mazda. Krause explained that he undertook this search because he had noticed during the earlier traffic stop that the insurance slip for the Mazda was a photocopy rather than an original, and the name of the insured was someone other than Mr. Kwafo. Krause also wanted to search the vehicle for any handguns.

[16] Within a few minutes, two other police officers, Carlo Colacci (“Colacci”) and Shawn Geris (“Geris”), arrived in a second scout car. Krause testified that as he was searching the driver’s area of the Mazda, Colacci pointed out something sticking out from under the driver’s floor mat. When Krause lifted up the floor mat, he found a small digital scale. He also observed some white specs on the surface of the scale, as well as a white powdery substance on the surface of the driver’s seat. Krause thought that the white specs on the digital scale as well as the white powdery substance on the driver’s seat appeared to be cocaine. However, Krause acknowledged that neither of those substances had been analysed for the presence of cocaine or any other controlled substances.

[17] Krause, Colacci and Geris continued to search the Mazda, now looking for illicit drugs. In the course of that search, Geris removed a panel covering some small fuses near the door in the driver’s area of the vehicle. Two plastic baggies containing fentanyl and cocaine were hidden behind the panel. Krause also found three cell phones in the centre console beside the driver seat, a Blackberry, an LG, and an iPhone.

[18] In the meantime, Haljaste had continued to detain Mr. Kwafo beside the police scout car. Although not visible on the ICC video, Mr. Kwafo can be heard arguing with Haljaste, repeatedly objecting to the fact that he had been arrested even though he had not been driving on a highway. Mr. Kwafo also began to complain that he wasn’t feeling well and that he was dehydrated and needed a drink. Krause testified that Mr. Kwafo began to spit up and at one point appeared to gag. The police officers decided to call an ambulance to take Mr. Kwafo to the hospital. When the ambulance arrived, Mr. Kwafo was taken to the hospital, accompanied by Krause and another officer. After being examined, he was subsequently released from the hospital and taken to the police station.

ii. Evidence of Haljaste

[19] Haljaste provided an account of the initial traffic stop and the subsequent arrest of Mr. Kwafo outside the convenience store that was consistent with the evidence of Krause, as well as with events depicted on the ICC video.

[20] Haljaste further explained that shortly after being arrested, Mr. Kwafo began spitting up and complaining he was dehydrated. Haljaste did not know the cause of Mr. Kwafo’s medical distress and he decided to call an ambulance. Haljaste handed Mr. Kwafo off to another officer and then assisted with the search of the Mazda. Haljaste testified that Krause advised him that they had located a digital scale in the Mazda, while Colacci told him that that he had observed what appeared to be cocaine residue under Mr. Kwafo’s fingernails. However, Haljaste himself did not notice anything under Mr. Kwafo’s fingernails.

iii. Evidence of Colacci

[21] Colacci testified that he and his partner Geris arrived on scene at approximately 7 PM. After being briefed on the situation by the other officers, Colacci stood behind Krause pointing a flashlight into the driver’s area of the vehicle while Krause searched that area. Colacci noticed a bump under the driver’s side floor mat and pointed it out to Krause, who located a digital scale hidden under the mat. The digital scale had some white specs on it, and there was a powdery white substance on the driver seat, both of which Colacci believed to be consistent with cocaine. Colacci also noticed a white substance underneath Mr. Kwafo’s fingernails which he believed to be cocaine. Colacci is not sure whether he told Haljaste about what he saw under Mr. Kwafo’s fingernails. However, he did mention this observation to the paramedics because he was concerned that Mr. Kwafo might have ingested something that was causing his evident medical distress.

iv. Evidence of Geris

[22] In January and November 2020, Geris suffered concussions in two unrelated motor vehicle accidents. He stated that, as a result, he has limited memory of the events of December 2, 2018.

[23] Geris does recall getting a call from Haljaste and Krause that evening indicating that they had made a Highway Traffic Act arrest and needed assistance. When Geris and his partner arrived, Mr. Kwafo was in handcuffs and appeared to be in distress, as he was vomiting and saying he was dehydrated. Geris recalls searching the driver’s area of the Mazda and locating some baggies containing drugs hidden behind a panel. Geris said that he looked behind the panel because in his experience drugs are sometimes hidden in motor vehicles in that manner. Geris was not sure whether he had removed one panel or two, nor does he remember any other details involving the removal of the panel and the discovery of the hidden drugs.

b. Defence Evidence

[24] Mr. Kwafo testified in his own defence. He is 25 years old and lives with his mother. He graduated from high school in 2017 and has no criminal record.

[25] Mr. Kwafo’s first job had been working with youth in the community, for which he was paid between $600 and $700 per week. Sometime in the fall of 2018, he began working at an auto repair shop in the Finch and Dufferin area, where he was paid about $500 per week in cash, usually on the Friday or Saturday of each week.

[26] On April 10, 2018, Mr. Kwafo purchased the Mazda sedan from an auto wholesaler. Mr. Kwafo produced the Bill of Sale for the vehicle, which indicated that the purchase price, including financing costs, was approximately $17,700, with monthly payments for the vehicle being $484. The vehicle had previously been registered in the province of Quebec. Mr. Kwafo said that he had saved money through the years in order to be able to purchase the Mazda.

[27] In order to register the vehicle in his name with the MTO, Mr. Kwafo was required to pay any outstanding driver fines. Mr. Kwafo provided an MTO receipt issued on April 16, 2018, showing that he had paid a fine of $160, imposed for a 2017 conviction for having failed to stop at an intersection. The MTO receipt stated that, based on his driving record as of that date, he was eligible to drive. Mr. Kwafo also produced an inspection report from the auto wholesaler dated April 16, 2018, stating that the vehicle had passed a safety inspection and that a safety standards certificate had been issued for it.

[28] Mr. Kwafo testified that on the evening of December 2, 2018, he was planning on spending the evening going out with a friend to celebrate the friend’s birthday. He was parked outside the apartment building at 2900 Jane Street waiting for his friend to join him when a police car pulled up with its emergency lights on. Mr. Kwafo did not know why the police were interested in stopping him. At that moment, he had a digital scale sitting on the passenger seat beside him. Mr. Kwafo explained that he had purchased the scale two or three months previously so that when he or one of his friends purchased marijuana, they could weigh it so as to make sure that they were receiving the right amount. Mr. Kwafo said that he had not used the scale for a couple of days, and he had never observed any white powder on the scale. However, he was concerned that the police might make a big deal about the scale and so he decided to tuck it under the driver’s floor mat.

[29] The police officers explained that they had stopped him because his driver’s license had been suspended on account of unpaid fines. Mr. Kwafo told the officers that he had paid all of his outstanding fines and he produced receipts from his glove compartment showing the payments. Nevertheless, the officers gave him a ticket and took his driver’s license. Based on his conversation with the officer who gave him the ticket, he understood that he could not drive on a highway. However, he believed that he was permitted to drive on roads such as Jane Street, because that was not a highway.

[30] Mr. Kwafo had not eaten that day and was thirsty. He therefore decided to drive to a nearby shopping plaza and get a soft drink before returning to 2900 Jane Street to pick up his friend. When the officers arrested him at the shopping plaza, he tried to explain to them that he thought he was permitted to drive as long as he did not travel on a highway, but they arrested him anyway.

[31] After he was arrested and was standing handcuffed beside a police vehicle, he felt dehydrated and nauseous and wanted to take a drink. He could see the officers searching his Mazda, but that didn’t cause him any concern. He had not noticed any white substance on the digital scale, and he thought the white substance on the driver’s seat was dirt rather than drugs. He was unaware of the fact that there were drugs hidden behind a panel in the driver’s area of the vehicle. He happened to have $675 in cash because he had been paid by his employer one or two days previously.

[32] In cross-examination, Mr. Kwafo explained that he had arranged to have a co-worker at the auto repair shop purchase the automobile insurance for the Mazda in order to save money on the insurance. Mr. Kwafo said he cannot remember the name of the co-worker.

[33] Mr. Kwafo was asked how he had been able to save the money needed to purchase the Mazda. He said his expenses were only about $600 per month, since he was living with his mother. In addition, his mother and brother were helping him with the car payments.

[34] Mr. Kwafo was asked why he had three cell phones. Mr. Kwafo explained that the Blackberry was not working and was out of service. He had recently purchased the iPhone for social media and photos, but he had kept the LG phone because it had all of his contacts and was the telephone number that other people knew and used to call him. The LG phone plan only cost him about $25 per month so he kept the LG in addition to the iPhone. Mr. Kwafo said he never thought about transferring the data or the telephone number from the LG to the iPhone.

[35] Mr. Kwafo was asked what he had done earlier in the day on December 2, 2018. He said he spent most of the day at home relaxing and at about three or four PM probably went to a nearby shopping mall to get food. However, later in his evidence he said that the only thing he purchased at the mall was a drink from Burger King. He said he did not buy any food at Burger King because he knew he was going to get food later on with his friend during the birthday celebration. After he was arrested, he began to feel ill and was spitting up. However, he denied that he had consumed any drugs and maintained that he was spitting up simply because he was dehydrated and had not had anything to eat that day.

[36] Mr. Kwafo denied that he was dealing drugs. He also denied having two cell phones so that he could separate his personal activities from his drug-related activities; denied that the cash in his possession was a result of drug dealing; denied that the digital scale was used to weigh illegal drugs, or that white specs on the digital scale or the white powdery substance on the driver’s seat in the Mazda were drugs. He said he felt sick that evening because he was dehydrated, and that his feeling ill wasn’t as a result of him observing the police officers searching his car.

Relevant Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[37] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. Thus, Mr. Kwafo is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

[38] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Mr. Kwafo is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to Mr. Kwafo and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

[39] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that Mr. Kwafo committed an offence with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt in relation to that offence.

b. Circumstantial Evidence and Proof Beyond a Reasonable Doubt

[40] The Crown’s case on all three counts is circumstantial. Therefore, as the Supreme Court of Canada noted in R. v. Villaroman, 2016 SCC 33, in order to find Mr. Kwafo guilty, it is necessary that a finding of guilt be the only reasonable inference that the evidence, or the lack of evidence, permits. Moreover, if the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that Mr. Kwafo is guilty, then he is entitled to an acquittal on that Count.

[41] Nor is it necessary that inferences inconsistent with guilt be based on, or arise from, “proven facts”. At the same time, those inferences must be reasonable, given the evidence or the absence of evidence, assessed logically, and in light of human experience and common sense. Villaroman, at para. 36.

[42] When assessing circumstantial evidence, it is necessary to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown is required to negative those reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. Villaroman, at para. 37. In short, “circumstantial evidence does not have to totally exclude other conceivable inferences” (R. v. Dipnarine, 2014 ABCA 328, at para. 22, quoted in Villaroman, at para. 42), and the trier of fact “should not act on alternative interpretations of the circumstances that it considers to be unreasonable” (Villaroman, at para. 42).

c. Assessing Credibility and W.D.

[43] Since Mr. Kwafo testified and denied the Crown’s allegations, it is necessary to determine whether the Crown has proven his guilt beyond a reasonable doubt in accordance with the framework set out by the Supreme Court of Canada in R. v. W.(D.). This means that if I believe Mr. Kwafo’s statements to the effect that he did not know about the drugs hidden in his vehicle, I must find him not guilty. Second, even if I do not believe Mr. Kwafo’s statements but they leave me with a reasonable doubt as to whether or not he knew about the drugs hidden in his vehicle, I must find him not guilty. Third, even if Mr. Kwafo’s statements do not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me of his knowledge of the drugs beyond a reasonable doubt. In making these findings, I am obliged to assess Mr. Kwafo’s statements in the context of the evidence as a whole, as opposed to considering his statements in isolation. (R. v. Hull, at para. 5).

d. Legal Requirements for Possession under the CDSA

[44] As noted previously, “possession” under the CDSA requires knowledge of the presence and character of a thing, co-existent with some act of control over it. Thus, if Mr. Kwafo did not know that there were drugs hidden in his car, he was not in possession of them and, similarly, could not have possessed them for the purpose of trafficking.

Analysis

a. Counts 1 and 2

[45] The Crown submits that it is extremely unlikely that drugs were hidden in the Mazda when Mr. Kwafo purchased it in April 2018, for the simple reason that those selling motor vehicles do not normally leave drugs hidden inside the vehicle for the benefit of the purchaser. Far more likely, in the Crown’s submission, is that Mr. Kwafo hid the drugs in the Mazda himself after purchasing it and thus was fully aware of them.

[46] I agree that, as a general proposition, it is extremely unlikely that drugs would be hidden in an automobile that is being offered for sale. But we have very little concrete information about the history of this particular vehicle, other than the fact that it was previously registered in the province of Québec and that it was being sold by an auto wholesaler in Toronto. In the absence of such information, it is difficult to be certain that there were no drugs hidden in this particular vehicle when it was sold in April 2018.

[47] I accept the Crown’s submission that there are a number of other suspicious circumstances which are consistent with the conclusion that Mr. Kwafo knew about the drugs hidden in the car. These suspicious circumstances include the fact that Mr. Kwafo was carrying $675 cash in small bills; he had hidden a digital scale under the floor mat in the driver’s area and there were white specs on the scale that were consistent with the presence of cocaine; he had two cell phones, which is a common practice of drug traffickers who wish to separate their trafficking from their personal activity; and Colacci observed white powder under Mr. Kwafo’s fingernails that appeared to the officer to be cocaine.

[48] Nor was Mr. Kwafo’s explanation for these suspicious circumstances particularly convincing, which suggests that it is likely – indeed, I would go so far as to say highly likely -- that Mr. Kwafo knew about the drugs hidden in the Mazda. But as explained earlier, there is a meaningful and appreciable difference between proof that a circumstance is highly likely, as opposed to proof of circumstance beyond a reasonable doubt. Moreover, even if I were to reject Mr. Kwafo’s evidence in its entirely, I am still required to assess whether there is evidence which I do accept that persuades me beyond a reasonable doubt that Mr. Kwafo knew about the drugs hidden in his car.

[49] The principal challenge in the Crown meeting this standard is the significant gap in its case arising from Geris’ inability to recall any of the details associated with his discovery of the drugs in the car. As noted above, Geris cannot recall why he decided to remove the panel that was hiding the drugs, other than the fact that in his experience drugs are sometimes hidden behind panels in motor vehicles. He does not know whether he removed one panel or two, whether the particular panel that was hiding the drugs appeared to him to have been removed or disturbed recently, or whether the drugs appeared to have been placed there recently as opposed to some months prior.

[50] These circumstances are highly probative in assessing whether Mr. Kwafo hid the drugs in the car himself, or whether the drugs might have been left there by the previous owner. Because neither Geris nor any of the other Crown witnesses are able to provide evidence on these issues, I find that I am unable to rule out the possibility that the drugs were left in the car by the previous owner, however unlikely that possibility might be.

[51] Because this is a circumstantial case, it is necessary for the Crown to establish that a finding of guilt is the only reasonable inference that the evidence, or lack of evidence, permits. Given the gaps in the Crown’s case, flowing principally from Geris’ inability to remember details of his search for and discovery of the drugs, this is not the only reasonable inference the evidence permits.

[52] I therefore find that the Crown has failed to prove beyond a reasonable doubt that Mr. Kwafo knew about the drugs hidden in his car. It follows that Mr. Kwafo is entitled to an acquittal on counts 1 and 2.

b. Count 3

[53] Since the Crown has failed to prove beyond a reasonable doubt that Mr. Kwafo possessed fentanyl and cocaine for the purposes of trafficking, it follows that it has similarly been unable to prove that the cash in his possession represents the proceeds of such trafficking. Mr. Kwafo is therefore entitled to an acquittal on count 3.

Disposition

[54] I find Mr. Kwafo not guilty on the three counts in the Indictment.

P.J. Monahan J.

Released: April 22, 2022