COURT FILE NO.: 17-0152
DATE: 20221207
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Floriano Daponte and Vivian Lee Hamilton
BEFORE: McArthur M.D., J
COUNSEL: K. Johnson and M. Smith, for the Federal Crown
E. Hilzenrat for the defendant/applicant, Vivian Lee Hamilton
E. Battigaglia, for the defendant/applicant, Floriano Daponte
HEARD: September 27 and December 5, 2022
Ruling on Directed VEDICT APPLICATIONS
Introduction
[1] The Crown has closed its case. The applicants each bring motions for directed verdicts.
[2] Counsel for Mr. Daponte asks that a directed verdict of acquittal be granted on all counts.
[3] Counsel for Ms. Hamilton asks that a directed verdict of acquittal be granted on count #1 (possession of property obtained by crime), count #2 (possession of fentanyl for the purpose of trafficking), and count #3 (possession of cannabis marijuana for the purpose of trafficking).
Factual Overview
[4] The defendants are charged jointly with seven counts of possession of prohibited substances, namely fentanyl, methylphenidate, morphine, suboxone, oxycodone, hydromorphone and cannabis, for the purposes of trafficking under s. 5(2) of the Controlled Drugs and Substances Act. They are also each charged with possession of property obtained by crime being substantial amounts of cash alleged to be the result of their drug trafficking activities under s. 354(1)(a) of the Criminal Code.
[5] The police had investigated the defendant-applicants for trafficking in prohibited substances throughout 2016. The investigation included many informants and the surveillance of a remote rural property owned by Ms. Hamilton at 2682 Coltsfoot Drive, Newbury. This is a small rural acreage property that included a residence, barn, silo and various small out-buildings. The property was otherwise surrounded by other farm fields.
[6] Both applicants were observed at the property from the earlier surveillance that will be detailed and discussed in these reasons.
[7] On December 2, 2016, OPP police officers entered upon the property and executed a search warrant that had been granted the day before as sought by the principal investigator, Detective Constable Reintjes.
[8] Both applicants were individual targets in relation to the entry and searches for controlled substances. Both applicants were also in the residence at the time of the police entry. They were each searched upon detention and arrested and ultimately transported to the London detachment.
[9] Ms. Hamilton was located by police alone in a bathroom adjusting her clothing. After an initial pat-down search officers became aware of an obvious unknown crunchy object in crotch area of her pants. After another female officer arrived the scene, she was searched, and thirty-two fentanyl patches were found that had fallen out of her underwear and were seized.
[10] A large quantity of various other drug substances were found and seized during the search of the property including Hydromorphone pills, Morphine pills, Oxycodone pills, Methylphenidate tablets, Buprenorphine and Naloxone tablets and Cannabis marijuana.
[11] Police also seized $49,330.00 total in cash Canadian (CDN) currency and $250.00 American (US) currency along with various packaging materials, a digital electronic scale, and other items.
The Issue
[12] The issue is whether, after engaging in limited weighing of the circumstantial evidence in the case, there is evidence of a prima facie case through reasonable inferences that a trier of fact could draw upon which a reasonable jury, properly instructed, could return a verdict of guilty on the various counts in relation to Mr. Daponte and Ms. Hamilton.
[13] For reasons that follow, the motions shall be granted on the Criminal Code proceeds charge and dismissed on the other remaining counts.
Defendants’ Positions
[14] Counsel for Mr. Daponte submits that the Crown has failed to elicit sufficient evidence upon which a reasonable jury, properly instructed could convict Mr. Daponte beyond a reasonable doubt involving all of the counts.
[15] Counsel for Ms. Hamilton submits that the Crown has not presented a prima facie case
a. on count #2 (possession of fentanyl for the purpose of trafficking) and specifically failed to prove that the fentanyl seized was possessed for the purpose of trafficking;
b. on count #3 (possession of cannabis for the purpose of trafficking) and specifically failed to prove that Ms. Hamilton had knowledge and/or control of the seized cannabis;
[16] Counsel for Ms. Hamilton joins in the same position as Mr. Daponte as to count #1.
Crown’s Position
[17] The Crown submits there is both direct and circumstantial evidence that reasonably supports inferences of guilt that both possessed the illicit substances, except the Buprenorphine and Naloxone tablets, for the purpose of trafficking.
Count 1 - Possession of moneys in excess of $5,000
[18] The Crown essentially conceded at the hearing as to count #1 (possessing property in excess of $5,000 knowing that all of the property was obtained in Canada of an offence punishable by indictment) that although cash amounts were found on the person of Ms. Hamilton ($515 CDN cash in her right pant pocket, $215 cash in her right rear pocket and $2,275 in her left pants pocket) and $200 cash on the table directly in front of Mr. Daponte just prior to his arrest, those cash amounts to do not exceed $5,000.
[19] Furthermore, the larger cash amounts found elsewhere and mainly in the bedroom of the residence cannot be connected to events particularly involving drug trafficking by either Mr. Daponte or Ms. Hamilton, other than by some suspicion. Simply put, no reasonable inference can be drawn in this case that the funds in excess of $5,000 had their source from drug trafficking over any particular time. There is also no other admissible evidence through a financial forensic expert analysis or otherwise that amounts to any evidence from which to make such deduction and/or inference.
The Legal Principles
[20] The test on a motion for a directed verdict is whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: See R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 SCR 154 at para 8 and R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828 at para 21 and R. v. Ortega 2022 ONCA 826.
[21] A motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction.
[22] Where the evidence relied on by the Crown is entirely circumstantial, the court must engage in limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the to be drawn. See Arcuri at para 23.
[23] It is not the responsibility of a judge on a motion to choose between competing inferences. Where the evidence is capable of supporting more than one inference, only the inferences that favor the Crown are to be considered. See R.v. Sazant, 2004 SCC 77 at para 18.
[24] Inferences may arise from evidence as well as from a lack of evidence.
Analysis
Count 1
[25] It is not necessary to address this count any further as noted earlier. There shall be a directed verdict of acquittal granted of count 1 as to both applicants.
Ms. Hamilton – Count 2 regarding possession of fentanyl for the purpose of trafficking
[26] Counsel for Ms. Hamilton submits that the Crown did not lead evidence that that could support an inference that the seized fentanyl patches were possessed for the purpose of trafficking.
[27] The evidence adduced by the Crown was that all of the fentanyl patches were located in a single plastic bag that was knotted at the top and fell out of Ms. Hamilton’s underwear during the more intrusive search after an initial pat down search.
[28] This plastic bag contained thirty 100 mcg fentanyl patches, a strip of approximately ¾ of one 100 mcg fentanyl patch and a strip of approximately 1/3 of one 100 mcg fentanyl patch. All of the patches had been removed from the manufacturers foil packaging. The marking “Fentanyl 100 mcg/h” was on each patch and was visible through the plastic bag. These were depicted in the various photos as made exhibits.
[29] Detective Inspector Fulford provided evidence as an expert that fentanyl is 100 times more potent than morphine and 40 times more potent than heroin. Fentanyl is a substance that is only medically prescribed by a physician and dispensed by a pharmacist. The sticky side of a fentanyl patch adheres to a person’s skin and the substance is absorbed through the skin over a period of three days with patches releasing in this case the maximum amount of 100 mcg per hour.
[30] All of these 100 mcg packages appeared as manufactured and were outside of their original packaging. None of the patches had been used, that is, the sticky side of the patches had not been removed.
[31] Officer Fulford testified that on the street, the patches are sold by the patch, ¼ patch or strips with the street value between $2 to $5 per mcg. The value of the patches seized would have a street value of $6,000 to $15,000.
[32] Further, his evidence was that cut patches can be chewed or are most commonly smoked by heating a cut piece on foil and inhaling the resulting fumes. It is also possible that patches can be soaked, and the extracted contents injected with a syringe.
[33] The Crown submits that Ms. Hamilton was in obvious possession of fentanyl and hiding 30 high-dosage patches in her underwear. An inference from Officer Fulford’s evidence is that legitimate medical usage of 30 patches would then be approximately 90 days.
[34] Counsel for the defence submitted that the evidence of personal use and that trafficking evidence was minimal that did not assist the court in drawing the inference that the fentanyl patches were possessed with the intention to traffic. Counsel also made other submissions that Officer Fulford’s evidence lead the trier of fact to guessing about what the officer was describing, provided anecdotes from his experience in 2017 and 2018 and did not provide meaningful experience with fentanyl patches that could be the basis to allow the court to draw the interference of trafficking. At this stage, it is not necessary to undertake a further detailed analysis of Officer Fulford’s evidence. This is not a case where there is a complete absence of expert evidence as in relation to count 1 as discussed above.
[35] This court finds there is a substantial quantity and value of fentanyl patches, all patches have been removed from the manufactures packing and contained in one plastic bag, concealment in the underwear of Ms. Hamilton with two of the unused packages featuring obvious cuts, an absence of any used cut packages on the person of Ms. Hamilton or anywhere in the residence, and the moneys in her various pockets, such possession of the substance is consistent with the purpose of trafficking and, combined with these features and the other substantial moneys found throughout the residence including her bedroom and the other evidence of other substantial illicit drugs in the vehicle that she owned that are also consistent with possession for the purpose of trafficking and the other evidence as will be discussed, an inference that the fentanyl packages were possessed for the purposes of trafficking as defined in the CDSA is both supported and reasonable.
[36] The court acknowledges that personal use of fentanyl by Ms. Hamilton might also be a reasonable inference. However, where the evidence is capable of supporting more than one inference, as is the case here, only the inferences that favor the Crown are to be considered at this stage.
[37] This court finds, upon examining the evidence in totality, there is evidence of the possession of the fentanyl by Ms. Hamilton and in this case, considering the other factual circumstances, the evidence is capable of supporting the reasonable inference that such possession was for the purpose of trafficking in fentanyl as defined in the CDSA. Accordingly, the directed verdict request of Ms. Hamilton in regard to count #2 is denied.
Mr. Daponte and Ms. Hamilton as to remaining charges
[38] The Crown indicated in submissions that it was not proceeding with count #7 in relation to Buprenorphine and Naloxone substances on the basis of the possession for the purpose of trafficking and only on the basis of simple possession.
[39] Counsel for Mr. Daponte, in written and oral submissions, emphasizes the sufficiency of evidence in relation to various cases in relation to the Crown’s persuasive burden in proving the case beyond a reasonable doubt and also cites the Arcuri proposition as to limited weighing where the case involves circumstantial evidence.
Inferences at the directed verdict stage
[40] This court is frequently involved with what inferences can be drawn from evidence, whether direct and circumstantial. However, what more is important at this juncture and is the narrower issue to determine is whether the evidence provide a prima facie case through reasonable inferences that a trier of fact could draw to find guilt. In other words, are the inferences that the Crown seeks to be made reasonably supported in the context of all the evidence at this stage in the proceeding.
[41] Sufficiency in the context of a directed verdict application must avoid the trap of the wider scope of inferences and weighing competing inferences and evidence beyond the reasonable inferences that favour the Crown. Consideration of this wider scope is properly conducted upon conclusion all of the evidence in the case. The court must be careful not to get drawn into consideration of other inferences and comparing other competing inferences.
[42] Where the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. This is likewise not an issue to address at this juncture.
Possession
[43] As it involves the balance of the charges in this case, a main essential element is possession of the various substances for the purpose of trafficking. Possession can be personal possession, constructive (or attributed) possession or joint possession. See s. 4(3) Criminal Code of Canada.
[44] Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in a place for their own or another’s use or benefit. See R. v. Morelli, 1020 SCC 8 at para 17 and R. v. Lights, 2020 ONCA 128 at para 47. With constructive possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control of the item to be possessed.
[45] The mere finding or presence of an article, without more that creates an inference inculpating the person, is an insufficient basis to support possession. The tenancy or occupancy of a place where an object is found does not create a presumption of possession. See R. v. Lights supra at para 50. The essential element is control of the subject matter, not control over the location or the property in which it was found.
[46] Counsel for Mr. Daponte submits that there are features in the evidence that render the evidence of little to no value. He submits the surveillance length and observations do not assist in inferences of possession of any controlled drugs in the indictment, that residency of Mr. Daponte asserted by the Crown is merely speculative, Mr. Daponte was neither the owner of the property at 2682 Coltsfoot nor the Grey Ford F150 truck where pill bottles containing the majority of the prohibited substances were located. He also emphasizes that no keys were located on Mr. Daponte to the residence, outbuildings, barn or the F150 vehicle. However, the F150 was located in the parking area of other vehicles associated with the residence and as identified as near the hen house in Exhibit 1.
[47] Counsel for Ms. Hamilton submits, in relation to the cannabis marijuana contained in the pails behind the barn/kennel area, that the evidence of the Crown does not establish any level of control by Ms. Hamilton over the three pails or the cannabis contained in them. Counsel submits the evidence cannot support an inference of control, knowledge or consent by Ms. Hamilton.
[48] The Crown in its factum provides an exhaustive outline of the evidence of Detective Inspector Lee Fulford as well as a specific outline of the primary facts as it involves both accused.
[49] As it involves these remaining charges, the issue is whether there is a body of circumstantial and direct evidence that in totality supports inferences that the accused persons, individually or jointly, had knowledge of the drugs discovered by police and possessed the substances for the purpose of trafficking. As mentioned above, this is not the stage to consider the cumulative force of the evidence and determine where the Crown has met its burden to prove the charges beyond a reasonable doubt.
The substances, paraphernalia and related items
[50] Reference has already been made to the fentanyl found on Ms. Hamilton. The court must consider this evidence in totality with other evidence in the case in relation to both accused.
[51] The police search also discovered and seized the following various prohibited substances along with cash of $49,330.00 Canadian currency and $250.00 American currency, plastic packaging materials, a digital electronic scale and other items:
a. 10 individual bags of cannabis marijuana with a total weight of 3228 grams from 3 individual pails located in the area behind the barn and dog kennel area,
b. 678 Hydromorphone pills,
c. 120.5 Morphine pills,
d. 1315 Oxycode pills,
e. 241 Methylphenidate tablets; and
f. 20 Buprenorphine and Naloxone tablets.
[52] The large quantity of pills was located in two larger pharmacy-sized pill bottles and one smaller pill bottle. All the pill bottles had been placed together in a compartment in the wheel well of a Ford F150 truck owned by Ms. Hamilton parked in a parking area proximate to the residence on the property owned by Ms. Hamilton. Given the location of the pill bottles and how the officer had to manoeuvre to obtain and extract the pill bottles, these bottles were all obviously deliberately placed together in this location to allow them to be difficult to detect and or discover accidentally but were readily accessible by persons who would know of them. The quantity and the combined value of these substances were likewise substantial. Given that Ms. Hamilton and Mr. Daponte were the most frequent residential occupants and in the closest proximity to the truck where the substances were stashed, the reasonable inference is that both of them had knowledge, possession and control of the substances. Furthermore, to add to the inference was the evidence that the smaller pill bottle (shown in Exhibit 7.P) was the prescription pill bottle with the label Rx: N9105700 in the name of Ms. Hamilton for 120 Oxycodone Hcl/acetaminfin Tablets with direction to take 1 tablet four times a day. This bottle as depicted clearly shows at least three different types of pills and not one type of prescribed substance. An inference is that at least two of the substances in this bottle are the prohibited substances and added to this container. The total amount of oxycodone pills was approximately ten times the number of oxycodone pills as had been prescribed to Ms. Hamilton.
[53] Acting Detective Inspector Lee Fulford of the Ontario Provincial Police testified as an expert to provide opinion evidence in the areas of the possession of prohibited substances including the nature and use of various substances, the use of packaging, the indicia of trafficking as opposed to use in relation to substances, namely, fentanyl, morphine, hydromorphone, methylphenidate (Ritalin), buprenorphine and oxycodone and cannabis marijuana.
[54] He testified, among other things, that the values of these of pills were substantial and the values indicative of possessing the substances for the purpose of trafficking. The details of some of his evidence is as follows:
a. The two approximate one-pound packages (Exhibit 7K) were valued at $3,000; the five approximate ½ pound packages and additional one pound package (Exhibit 7l) were valued at $5,000; and the remaining one and ½ pound package (Exhibit 7N) were valued at $2,300, for a total of $10,300;
b. The hydromorphone pills in various strengths had a value of approximately $6,500 to 13,000;
c. The oxycodone pills were in various strengths had a value of approximately $35,000 to 70,000;
d. The morphine pills in various strengths had a value of approximately $4,000 to 6,600;
e. The Methylphenidate pills had a value of approximately of $2,410 to 3,600.
[55] Substantial Canadian and American cash currency was also found and seized including cash in containers amongst clothing in bedroom drawers as well as a black purse that also contained various pieces of identification of both defendants.
[56] In relation to the counts involving the substances for the purpose of trafficking, the nature of the drugs, the quantities discovered, the nature of their various methods of concealment and packaging, additional plastic baggies discovered in the residence elsewhere not associated with the kitchen, the weigh scale, the various amounts of cash on various area of the person of Ms. Hamilton, the cash moneys in front of Mr. Daponte on the table upon police entry and bundles cash found elsewhere, and substantial cash deposits by Ms. Hamilton particularly in and through November from the receipts seized in the residence, in totality support a reasonable inference that the substances were possessed by both defendants for trafficking.
[57] Defence counsel raises the point that there was an absence of some items that are generally expected and indicative of trafficking, for example, debts lists, etc. Counsel also had raised some evidence during trial about the kennel area and the price of dogs with the inference that dogs may be raised or bred and sold. This might create an inference that the moneys were from dogs and other activities. These are considerations and inferences that arise another time but not at this stage in this case.
Ms. Hamilton
[58] Counsel for Ms. Hamilton submitted that the evidence lead by the Crown does not establish any level of control over the pails or the cannabis contained in them and that there is no evidentiary foundation that the pails were all on the property owned by Ms. Hamilton and that Ms. Hamilton cannot be said to have control over her neighbour’s property even if the pails were there.
[59] However, a reasonable inference can be made of Ms. Hamilton’s and other occupant’s control of the area. The police were able to make entry onto the property uninvited and unannounced, however, the evidence is that they encountered two aggressive dogs on the property belonging to Ms. Hamilton and/or Mr. Daponte. One officer contemplated harming one dog out of concern to be attacked. Ms. Hamilton was asked by another officer in the residence to take another dog to another room based on its behaviour and also discussed how the dogs were to be looked after. These dogs had been observed on earlier occasion in surveillance by police that included Ms. Hamilton walking these dogs around the property. The kennels at the rear of the barn were most proximate to the pails. A deer carcass was, on one occasion, seen being deposited into the kennel area obviously intended for any dogs. An inference can be reasonably made that the various dogs on the property would have made the property occupants aware of anyone coming onto and in the proximity of the property and outbuildings, including the area where the pails were located.
[60] Counsel for Ms. Hamilton raises the possibility other persons coming onto the property who had a history of trafficking and producing cannabis, there was no fencing in the rear to demark the property line and there was no fence to exercise any measure of control of the open field. A reasonable inference can be made that access to the pails came from the property owned and occupied by Ms. Hamilton and Mr. Daponte in such a remote location. Ms. Hamilton also operated a business on this property that may, as suggested through defence counsel’s questioning, have included the kennels that were proximate and adjacent to the area where the pails were located. Given the evidence that Ms. Hamilton’s property was surrounded by open fields on three sides and the concession road a substantial distance away as depicted in the photograph exhibits, this strengthens the inference of her control of the property and awareness of persons other than her and Mr. Daponte on the property she owned. As to the possibility of others on the property that is likewise another inference that may be considered further but not at this stage.
[61] As to control over the cannabis substance, there was no direct evidence of Ms. Hamilton nor Mr. Daponte in surveillance being observed in the area where the pails were found. However, Ms. Hamilton’s possession of a substantial quantity of fentanyl, other significant substances hidden in the wheel well area of the truck owned by her and, as noted earlier, with one pill bottle having belonged to her, substantial amounts of cash on her and within her home, there is a body of circumstantial evidence to support the inference of Ms. Hamilton’s knowledge and possession and control of items and substances in various ways and nature of illicit, high-value drugs was for trafficking purposes and included cannabis. Such inferences can be made from this evidence in particular, as well as the evidence as a whole.
[62] There is other evidence that I need not review in substantial detail. This includes significant cash deposits as evidence from bank receipts (Exhibit 33) seized from Ms. Hamilton’s purse and noted particularly in November of 2016 (November 4, 8, 24) that support the activity and presence of one or both Mr. Daponte and Ms. Hamilton at the property. There are also other documents found connected to Ms. Hamilton like the Bell invoice dated November 17, 2016 and Land Registry Office title abstract (Exhibit 2). All of this evidence supports the inference of Ms. Hamilton owning and occupying the property on a regular basis including the residence and outside areas.
[63] There is also evidence of male clothing in the residence and other items in the residence that can infer Mr. Daponte’s connection to the residence was beyond a casual visitor. He was observed as more active around the property and the person who engaged more frequently with numerous visitors. This was consistent with having some occupation and connection than a mere visitor to this property and the associated buildings and area around it. The inferences also arise in combination with the letter from the medical clinic regarding a diabetes appointment for October 24, 2016. His health card was found in the purse that contained various items of Ms. Hamilton’s. On the day of the search, Ms. Hamilton asked officers to retrieve medication for Mr. Daponte which was an inhaler and diabetes medication. The medication was retrieved from the kitchen area along with a blood testing kit to check his blood sugar levels.
Mr. Daponte
[64] Unlike Ms. Hamilton who was only observed at the property on 4 of 8 days of surveillance, Mr. Daponte as mentioned was more frequently observed at and around the Coltsfoot Drive property and more active at the property. On each day that surveillance is conducted, the officer observed Mr. Daponte consistently at the Coltsfoot Drive property, moved around the property without any restriction, was in and out of the residence and the outbuildings, picked up mail from the mailbox and regularly performed chores and dealt with the farm animals which involved dogs, a miniature horse, chickens, geese, ducks and pigeons, greeted many visitors to the property, and engaged with many people who attend the property for mostly short periods in motor vehicles.
[65] The majority of surveillance of the property was conducted mainly in the months of July and November 2016 and specifically on July 13, 14, 15, August 31, November 4, 10, 18 and December 2, 2016.
[66] Counsel for Mr. Daponte submits that the surveillance evidence suffers various shortcomings; 70 hours of surveillance were completed when over 8,472 hours of surveillance were possible over the almost one-year period. Counsel also submits there was no evidence advanced by the Crown as to the difference of a hobby farm and a regular farm and that the number of numerous daily short vehicle attendances was meaningless, and no vehicles were stopped by the police leaving the property and found to be in possession of drugs. Counsel submits that the surveillance evidence does not assist in supporting an inference of possession of any of the prohibited substances and that any assertion of residency by Mr. Daponte is pure speculation.
[67] Counsel for Mr. Daponte frequently focused on areas of the evidence in isolation and a critique of the inferences sought to be made by the Crown. This approach did little to assist in relation to the evidence in totality that supported available inference in favour of the Crown at this stage. As mentioned earlier, it is the inferences in the Crown’s favour that could arise from particular facts and from the evidence as a whole that is the issue at this stage. There may well be other inferences that can be made on the evidence. This is a consideration at the end of the case.
[68] The court acknowledges that, without more, the substantial number of daily short duration visits by individuals to an isolated and remote rural property, as noted in the surveillance, could be meaningless. The Crown submits that it is the substantial body of direct and circumstantial evidence that supports the inferences that Mr. Daponte was possessing various prohibited substances for the purpose of trafficking to others.
[69] The Crown outlines in its factum, various observations of Mr. Daponte in relation to these attendances of other individuals in vehicles at the Coltsfoot property. I need not list all of these but rather give a brief summary of some of the evidence for the purposes of this application:
a. July 14, 2016 – Ms. Hamilton was observed to arrive at the residence but not observed further that day. Mr. Daponte walks out with two individuals from the residence after the individuals arrive and enters and exits the residence many times and exits the last time with a large white pail. The female walks to the barn with Mr. Daponte and returns with something in hand;
b. November 4, 2016 – Ms. Hamilton is walking a dog while Mr. Daponte speaks to a male driver who attends in a pick-up truck, and they proceed together to the barn. When exiting the barn, the male has four white tablets in his hand that he puts in his pocket and returns to his vehicle. Soon after, another vehicle attends and driver is observed exiting a residence and cupping an item in his right that he places near the left taillight, retrieves a green bag and returns to the residence. Twenty-five vehicles attend the property that day.
c. November 10, 2016 – Two women arrive in a mini van who Mr. Daponte meets and hands a small item to the female driver who hands Mr. Daponte a green item the colour of Canadian currency. Soon after another vehicle attends, and the occupants and Mr. Daponte enter the residence. The driver comes out and goes into his vehicle and is observed counting money and giving money to the female who leaves and enters the residence and returns one minute later and they leave. Ms. Hamilton is in the residence throughout. 52 vehicles attend the property that day.
d. November 18, 2016 - a female driver and male passenger entered the residence from a black Ford Escape vehicle that attends the property. Approximately one hour later the male passenger exits the residence and enters the passenger side of the vehicle with something cupped in his right hand. Ms. Hamilton is observed at the property on this date. Later, a red pickup truck is parked on the property and the driver pushes his seat forward and retrieves something from under the seat. The driver and passenger are then smoking from a glass pipe. Ms. Hamilton departs the property while the occupants of the vehicle are smoking.
e. December 2, 2016 - a Honda Accord vehicle arrives at the property and a male and female enter the residence and exits approximately five minutes later with the female having something cupped in her hand. This is the same day of the execution of the search warrants and Ms. Hamilton was located inside the residence as was Mr. Daponte by the police. There were twelve vehicles observed arriving and departing on this date before the search warrant was executed and police search and seize the various substances mentioned.
[70] In addition, is the evidence that Mr. Daponte was seated at the kitchen table with ten $20 bills stacked on the table directly in front of him. Almost simultaneously, Ms. Hamilton was found in the bathroom in a crouched position adjusting her pants. There was located on her approximately $3005.00 CDN and $210 in US currency in various pockets in her pants. Nine bundles of currency totaling $18,000 CDN were found in the dresser drawers, loose currency of $1010 CDN and $40 US were found in a different drawer in the same dresser, 12 bundles of currency totaling $24,000 CDN were retrieved from a white plastic container under the bed, and loose currency $480 CDN in $210 US, as well as another $2415 CDN, were seized from two locations in a purse that was located under a table.
[71] The police found and seized a box of zip lock baggies in the storage and laundry area and three packages of unused plastic baggies with zip tops in the master bedroom. In the purse that was mentioned above, there was located Ms. Hamilton's drivers license and Mr. Daponte’s health card along with transaction records from the Bank of Montreal showing large cash deposits.
[72] After the arrests and search, subsequent surveillance on December 4, 2018 observed Ms. Hamilton tending to the dogs at the property and on the following day tending to different livestock, operating the grey Ford F-150 pickup truck and moving this truck on the property on the following day.
[73] Counsel for Mr. Daponte submits that there are many frailties in the evidence: that Mr. Daponte was not ever seen near the grey Ford F150 nor in the field where the cannabis was found; that he was not near Ms. Hamilton’s underwear when and where the fentanyl was located; that no prohibited substances were identified in the surveillance or attendances by vehicles and individuals to the property; and that no currency or drug paraphernalia was located on Mr. Daponte. Counsel submitted that this lack of evidence does not assist in supporting an inference of possession regarding any counts in the indictment.
[74] Counsel for Mr. Daponte also submits that:
a. Police never observed Mr. Daponte ever sleep over at the Coltsfoot property since the police never confirmed if he arrives there before or after surveillance is done;
b. Mr. Daponte’s driver’s licence shows an address other than Coltsfoot and was not undermined by the Crown in evidence;
c. Mr. Daponte does not have a titled or leased interest in the Coltsfoot property or the grey Ford F150;
d. Not one piece of clothing or jewelry is tied to Mr. Daponte except a note for a past medical appointment from October 26, 2016 which shows an address other than Coltsfoot;
e. Mr. Daponte’s health card was found within the wallet on a floor and not anywhere that would assist in an inference of control over the bedroom;
and as a result, there is insufficient evidence either of knowledge or control involving Mr. Daponte to justify a directed verdict on all counts.
[75] The Crown submits there is an inference from the evidence both Mr. Daponte and Ms. Hamilton were in a position and exercised control over the property; Ms. Hamilton by virtue of her title to the property and Mr. Daponte as a consequence of his frequent presence and active role at the property and his relationship with Ms. Hamilton inferred from evidence referred to earlier.
[76] The presence and circumstances of documentation and personal items such as identification, mail and clothing are appropriate factors to consider since these are items typically maintained in a location to which the owner and occupiers have access and control. Control over the property is an important feature in this case given the remote location of the property and the unique access necessary to retrieve and safeguard the quantity and substantial value of the controlled substances discovered in various methods to stash the substances.
[77] The Crown also submits that the evidence in totality infers that active steps of concealment, money collection and disposition by Mr. Daponte and Ms. Hamilton both encouraged, assisted, or directed efforts that is consistent with and establish power and authority for aiding or abetting the possession of substances for the purpose of trafficking them pursuant to section 21 of the Criminal Code.
[78] In the case of R. v. Savory, 2022 ONCA 132, the Ontario Court of Appeal considered the jury verdict of guilt in a drug offence where the appellant argued that the conviction in the case representative perverse verdict, one that no properly instructed jury acting reasonably could have rendered. In that case, police had discovered 2.5 kilograms in a hidden compartment in the appellant’s SUV when executing a search warrant. The sole issue in the case at trial was possession and specifically whether the appellant new that the cocaine was in his vehicle.
[79] The appellant had been under surveillance on-and-off for over a year and was never observed accessing the compartment nor did his lifestyle support the theory that he was a drug trafficker and operating in high amounts of cocaine. The appellant pointed to his brother who was a convicted drug dealer and possessed drug paraphernalia around the time of the appellants arrest and who had gifted him the vehicle in question. The court noted the evidence in the case had included the following:
a. an SUV was registered to, and legally owned by, the appellant for almost two years prior to the search;
b. the appellant was seen driving the vehicle on multiple occasions in the time frame;
c. during the last 14 months prior to the search, the appellant was the sole person seen by the surveillance officers driving the vehicle which meant that his brother was never seen driving the vehicle;
d. The secret compartment was visible in the back seat of the vehicle where his children's car seats were as he had installed them;
e. The appellant was seen by surveillance putting his children into the back seat of the car; and
f. the police discovered the secret compartment because a large, upholstered panel affixed to the back of the seat with a large gap looked weird. This also allowed the officer to put his fingers behind the panel and pull it back revealing the plastic bags containing all of the cocaine.
[80] The court dismissed the appeal and found this evidence, combined with sheer value of the cocaine, a quantity of which was unlikely to have been left by anyone in the appellant's unwitting control made for a factual case on which a properly instructed jury could reasonably arrive at a conclusion of guilt.
[81] In this case, a substantial quantity of multiple substances were specifically located in the wheel well area of the vehicle owned by Ms. Hamilton, and on the property owned by Ms. Hamilton, and in one pill bottle connected with Ms. Hamilton. This vehicle, and accordingly the drugs, were proximate to the residence and the parking area and lane access for vehicles generally. These evidential features along with:
a. evidence of male and female clothing in the residence and bedroom, the identification and other documents of both Ms. Hamilton and Mr. Daponte in the residence,
b. the substantial amounts of cash within the dressers and elsewhere in the bedroom area,
c. the cash on the person of Ms. Hamilton and directly in front of Mr. Daponte on the table on December 2, 2016’
d. as well as the other activities of exchanging items between many individuals by Mr. Daponte,
lead to an inference that the placement of such a substantial quantity of drugs and cash in such a remote rural location would have been left by anyone else in the unwitting control of Ms. Hamilton or Mr. Daponte, both of whom were either the owners or persons who regularly frequented the property. Likewise, it’s an inference that these individuals possessed these substances for the purpose of trafficking.
[82] This court also observes that the Ontario Court of Appeal has recently considered the issue of inferences involving circumstantial evidence where a loaded firearm was found in a residence, see R. v. Stewart, 2022 ONCA 726. That case comments on the trial judge’s finding that the accused has full access to a basement apartment and all its rooms and ultimately had knowledge and control of a handgun and ammunition and commented on the lived-in quality of the accused’s possessions in the basement apartment. This is similar to the lived-in features in the present case that connect Mr. Daponte to the residence and property in various respects, and with Ms. Hamilton, and go beyond him being a mere casual acquaintance or visitor at the Coltsfoot property.
[83] There is also the most recent decision in R. v. Ortega, 2022 ONCA 826 which I made counsel aware of earlier in the week and received additional submissions on since. In that case the trial judge granted a directed verdict. The Court of Appeal emphasized the importance of examining the evidence in totality at this stage and, where the evidence is assumed to be true, and subject to limited weighing provided for by law, to determine the admissible circumstantial evidence upon which a reasonable trier of fact, properly instructed, could return a verdict of guilty. In that case the court found that evidence of the accused’s actions supported an inference that the accused’s actions were consistent with those of an associate of another specific person in that drug business. The court indicated in that case that a reasonable trier of fact could infer not only that the accused had control over the vehicle in which narcotics were located but that it is unlikely he would have been given effective control over such a large and valuable quantity of narcotics if he was not a trusted member of the other person's drug conspiracy which was an inference fortified by his conduct and repeated visits to a stash house location.
[84] In this case, the cache of drugs are found in various locations on the property and the person of Ms. Hamilton in particular, as is moneys immediately on or proximate to both defendants here. This court is satisfied after engaging in the limited weighing permitted by the authorities, the evidence in this case is capable of supporting the inference that Mr. Daponte and Ms. Hamilton together possessed the prohibited substances for the purpose of trafficking. This court finds a reasonable trier of fact, properly instructed, could return a verdict of guilty on the various counts of possession for the purpose of the illicit substances as charged, with the exception of the Buprenorphine and Naloxone tablets, in relation to Mr. Daponte and Ms. Hamilton
Conclusion
[85] As stated in relation to count 7, the Crown has decided to withdraw the charge of trafficking and proceed only in relation to simple possession of the substance contrary to s. 4(1) CDSA.
[86] For reasons given, the motions for a directed verdict:
a. are granted in relation to count 1 and that count is dismissed;
b. are dismissed in relation to all other counts.
Justice M.D. McArthur
Dated: December 7, 2022