COURT FILE NO.: CR-21-90000017 / CR-21-90000244
DATE: 20221216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DENNIS MENSAH and
MARVIN NYARKO MENSAH
Christina Malezis, for the Crown
Catherine Szpulak, for Dennis Mensah
Magdalena Wyszomierska, for Marvin Nyarko Mensah
HEARD: October 3, 4, 6, 7, 11-14, 2022
reasons for judgment
schabas j.
Overview
[1] On the evening of May 26, 2019, Dennis Mensah was arrested following a police investigation into suspected drug trafficking. Dennis had over $500 in cash and two mobile phones with him when he was arrested at a McDonald’s restaurant in Toronto. Subsequent searches of a car Dennis had been driving revealed ripped pieces of plastic wrapping consistent with drug packaging and, more significantly, a secret compartment, or “trap”, in the front passenger seat which contained over $19,000 in cash, fentanyl and carfentanil with a street value of over $2,000, a digital scale, plastic wrapping and other drugs including cocaine and cannabis. Also found in the trap was a loaded Browning High Power 9mm Luger handgun, a restricted firearm.
[2] Later that evening, following Dennis’s arrest, the police searched an apartment at 713-8110 Birchmount Road in Markham. The registered tenant for that apartment was Dennis’s brother, Marvin Nyarko Mensah. The police had information that Dennis had frequently been at that apartment, including during the preceding few days when Dennis had been under police surveillance. In that apartment, which the police entered using a key obtained from Dennis when he was arrested, the police found identification and other documents and items relating to both Dennis and Marvin. The police also found a hidden compartment in a wall under a bathroom sink which contained ripped plastic similar to that found in Dennis’s car, digital scales and cocaine. Elsewhere in the apartment the police found, in a shopping bag, phenacetin, which is a cutting agent used by drug traffickers. They also found $1,850 in cash in a shoebox, as well as vacuum-sealed bags of what appeared to be marijuana.
[3] During the search of 713-8110 Birchmount, Marvin arrived at the building. However, when he got off the elevator on the 7^th^ floor, instead of entering his unit he walked past it and entered a stairwell. This was observed by two police officers in plain clothes who were assisting with the search, whom Marvin passed in the corridor on the 7^th^ floor. Marvin was arrested when he exited the stairwell on the ground floor. A car believed to have been used by Marvin, and for which he was carrying the keys when he was arrested, was found in the parking lot of 8110 Birchmount. A subsequent search of that car also located a trap behind the front passenger seat which contained fentanyl, carfentanil, cocaine, and marijuana in vacuum-sealed bags packaged very similarly to the marijuana found in the apartment. Also found in the trap was $1,510 in cash, wrapped in a sheet of paper from George Brown College containing Marvin’s course schedule.
[4] Dennis and Marvin were both charged with possession of proceeds of criminal activity relating to the $1,850 found in the apartment (Count 1). Dennis was charged with four offences relating to possession of the firearm found in the car he had been driving (Counts 2 – 5), and was charged with possession of fentanyl and carfentanil for the purpose of trafficking that was also found in the car (Counts 6 and 7). Marvin was charged with possession of carfentanil for the purpose of trafficking that was found in the car located in the parking lot during the search of the apartment (Count 8), and with possession of proceeds of crime relating to the $1,510 found in that car (Count 9).
[5] For the reasons that follow, I have concluded that Dennis is guilty on Counts 2 – 7 and Marvin is guilty on Counts 8 and 9. I find them not guilty on Count 1.
Summary of the investigation
[6] On May 21, 2019, a “tracking warrant” was issued permitting the police to track the location of cell phones associated with Dennis in order to observe his activities, as he was suspected of drug trafficking. Surveillance began on May 23, 2019, during which Dennis was seen entering and leaving a Tim Horton’s restaurant and driving a Lexus automobile with licence plate CHRN 475 (the “Lexus 475”).
[7] The police obtained information that Dennis might be linked to an apartment at 713-8110 Birchmount Road in Markham and conducted an investigation there on May 25, 2019. A security guard who worked at the building testified at the trial that he recognized Dennis when shown a photograph of him. He stated that Dennis drove the Lexus 475 and had frequently provided Dennis with tickets, or permits, for the car to be parked in the visitors’ parking area. As the security guard also told the police at the time, Dennis had a fob to enter the building, and was sometimes seen walking a dog. The security guard said that he saw Dennis regularly at 8110 Birchmount between September 2018 and May 2019. He believed Dennis was a tenant in unit 713.
[8] The police also obtained information that the registered tenant at 713-8110 Birchmount was Marvin. The lease obtained by the police indicated that it included parking spot P3 #143 in the underground parking lot.
[9] On the evening of May 24, 2019, Dennis was seen on several occasions in the Lexus 475. In the parking lot of a community centre, he met with an unidentified male who had arrived in another Lexus with licence number CDNX 080 (the “Lexus 080”). That meeting lasted approximately 45 minutes.
[10] Shortly afterwards, as a result of the tracking of Dennis’ phone, the Lexus 475 was observed arriving at an apartment complex and entering a parking area. Two minutes later, as the car left the complex, an unknown male exited the passenger door when the car reached the sidewalk.
[11] About an hour later, Dennis and the Lexus 475 were seen at another apartment complex. A person driving a Hyundai arrived and entered the passenger side of the Lexus 475 and left a minute later and returned to the Hyundai. He then re-entered the Lexus 475 briefly and then went back, again, to the Hyundai, following which both cars drove away.
[12] On the evening of May 26, 2019, Dennis was seen in the Lexus 475 engaging in similar conduct. On three occasions he was seen arriving at locations, following which an individual would arrive and enter Dennis’s car briefly, and then leave.
[13] The police also placed 713-8110 Birchmount under surveillance in the early evening of May 26, 2019. Around 8PM, two individuals were observed on the balcony of the unit. One of the individuals was wearing clothing which matched the clothing Marvin was wearing when he was arrested later that evening.
Dennis’s arrest and the searches of his car
[14] Just before 10PM on May 26, 2019, following the observations described above, Dennis was arrested in a McDonald’s restaurant in Toronto. He was found with $515 and several keys on his person. He also had two mobile phones with him. One of the phones was the phone that had been tracking Dennis over the previous few days. The Lexus 475 was parked outside the restaurant.
[15] At about 10:30PM on May 26, 2019, the police were advised that their applications for search warrants had been granted, authorizing searches of the Lexus 475 and of 713-8110 Birchmount Road.[^1]
[16] Dennis’s car was initially searched by an officer in the parking lot of the McDonald’s restaurant. In it he found many torn bits of plastic packaging in the driver’s door which would have been visible to the driver. He also found tickets or permits in the car, including one relating to 8110 Birchmount.
[17] On May 27, 2019, the Lexus 475 was subject to a more detailed search. The searching officer found a concealed compartment, or trap, in the back of the front passenger seat that had an electronic locking mechanism. He was able to bypass the lock and in the trap the officer found a loaded and cocked handgun, money, a small electronic scale and what appeared to be drugs in baggies. The trap contained 5.51 grams of fentanyl, 4.58 grams of carfentanil, 16.88 grams of crack cocaine, 0.74 grams of Schedule 1 Phytocannabinoid, $19,850 CAD, and $60 USD.
[18] The registered owner of the Lexus 475 was Natasha Mohamed of 13-43 Bond Street in Hamilton. Police attended this address and learned that she did not reside there.
The search of the apartment at 713-8110 Birchmount
[19] The police entered 713-8110 Birchmount at 10:45PM on May 26, 2019, using a key seized from Dennis when he had been arrested 45 minutes earlier. On the kitchen counter they found a pill bottle with Dennis’s name on it. The police also found an Ontario health card for Dennis which had expired on August 19, 2018, and a court document relating to Dennis with a remand date of January 10, 2019.
[20] In a shoe box in a bedroom closet, the police found identification relating to Marvin, including a health card and a driver’s licence. In other shoe boxes the police found a digital scale, some vacuum-sealed bags of marijuana and, in one box, $1,850 cash beneath some shoes.
[21] The police also located a hole in the wall under the bathroom sink that had a cover over it. In the hole was a small digital scale, many white and grey pieces of plastic bags or baggies, and some cocaine. A shopping bag near the entrance to the apartment contained phenacetin, a cutting agent. Other documents and pieces of identification for Marvin were also found in bags near the entrance.
[22] The police seized 0.44 grams of crack cocaine, 439.26 grams of phenacetin, and $1,850 CAD from the apartment at 713-8110 Birchmount.
Marvin’s arrest and the search of his car
[23] The search warrant for the apartment at 713-8110 Birchmount also authorized the police to search a storage locker on level P3 of the building. To access it, the police had to go through the parking area on that level. When officers first went to the locker during the search they noticed that the parking space associated with unit 713, P3 #143, was empty. They were unable to open the storage locker and returned to the apartment where the officer in charge of the search suggested another way to gain access to it.
[24] However, as the officers walked back down the hallway on the 7^th^ floor, an individual came out of the elevator, walked past unit 713 and then entered the stairwell. This aroused suspicion and the officers took the elevator to the ground floor and went to the exit of the stairwell where they met the same individual who had evidently walked down seven stories. The police identified him as Marvin and placed him under arrest.
[25] It is not clear whether the officers, who were in plainclothes, were wearing vests that identified them as police during the search. The officers could not recall if the door to unit 713 was open when Marvin walked past his apartment during the search. Nevertheless, Marvin either knew or suspected the police were there which explains why he took the stairs down seven stories, attempting to leave the building.
[26] When arrested, Marvin had several bundles of cash on him totalling $635, as well as four cellphones, keys to a Lexus and house keys. The officers then returned to search the locker on level P3 where they found the Lexus 080 parked in the spot for unit 713, P3 #143. A warrant was obtained to seize and search the car, but in order to get the car out of the underground parking lot it had to be driven. The police accessed and moved the car using the keys found on Marvin.
[27] The Lexus 080 was subject to a detailed search on May 29, 2019. A secret compartment with a locking mechanism was found in the back of the front passenger seat which opened towards the rear of the car. It was similar to the trap on the Lexus 475. When the trap was opened, the police found marijuana packaged in vacuum-sealed bags, cocaine, and a stack of currency wrapped in a piece of paper which contained a course schedule from George Brown College with Marvin’s name on it. It is agreed that the trap contained 112.93 grams of carfentanil, 0.87 grams of fentanyl, 0.24 grams of cocaine, 172.38 grams of cannabis and $1510. A digital scale was also found.
[28] The registered owner of the Lexus 080 was Jermaine Ferguson, but no information was provided about that individual.
Expert evidence and admissions
[29] A police officer qualified as an expert in drug trafficking offences testified that Dennis’s conduct in having brief meetings with people in the Lexus 475 – as seen twice on May 24 and three times on May 26 (but not including the 45-minute interaction with the driver of Lexus 080) – was consistent with drug trafficking. The officer stated that drug transactions are often conducted in cars, which offer a level of concealment, and the transactions are carried out quickly and discreetly.
[30] The police drug trafficking expert also testified about the possession and use of multiple cellphones and digital scales as characteristic of drug dealing, as is the possession of large amounts of cash, as drug dealing is a cash business. The same is true for packaging substances in small plastic bags or wrappers. Dealers often have such packaging with them. The possession and use of cutting agents in order to dilute substances, and thereby increase the yield of a drug, is also common. The use of hidden compartments in cars by drug dealers has also become common, he testified.
[31] Based on the expert’s evidence, the 5.51 grams of fentanyl and 4.58 grams of carfentanil found in the Lexus 475 would have yielded well over 100 hits and had a street value of at least $2,000. It is admitted by Dennis that if possession of these drugs by Dennis is proven, then the drugs were possessed for the purpose of trafficking.
[32] The value of the 0.87 grams of fentanyl and 112.93 grams of carfentanil in Lexus 080, would have had a much higher street value, likely over $24,000. It is also admitted by Marvin that if possession of these drugs by Marvin is proven, then the drugs were possessed for the purpose of trafficking.
[33] It is also admitted that the handgun found in the Lexus 475 was an operable Browning High Power 9 mm Luger handgun with a ten-shot magazine capacity, and the serial number was obliterated. One cartridge of ammunition was also seized. The officer who found the handgun said there were 8 rounds of ammunition in the gun, including one in the chamber ready to be shot. There is no dispute that the weapon and ammunition meet the definitions for restrictions found in s. 84 of the Criminal Code, and it is admitted that Dennis did not possess a firearms certificate, permit or licence for the handgun, or for any other restricted firearm.
Analysis
The law on circumstantial evidence
[34] The main issue in this case is proof of possession, in particular, whether the accused had knowledge and control of the items which are the subject of the charges under s. 2 of the CDSA and s. 4(3) of the Criminal Code. In the case of Dennis, the issue is whether he knew of and had control over the drugs and firearm found in the Lexus 475, and of the money found in the apartment at 713-8110 Birchmount Rd.[^2] For Marvin, the issue is whether he knew of and had control over the money found in the apartment and the drugs and money found in the Lexus 080.
[35] The Crown relies upon circumstantial evidence to prove possession. Accordingly, a finding of guilt can only be made if possession of the prohibited items by the accused is the only reasonable inference arising from the evidence or the absence of evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 30-36. The Court stated at para. 30 of Villaroman that a jury should be told “that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits” and that one should “guard against the risk of ‘filling in the blanks’ by too quickly overlooking reasonable alternative inferences.”
[36] At para. 35 of Villaroman, the Court continued:
In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [Citations omitted]
[37] This means, the Court went on, that “the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt.” The Crown, however, “does not need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’.” Only reasonable possibilities based on logic and human experience should be considered, not speculation or conjecture. “[T]he basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman at paras. 37–38.
[38] Consistent with this approach, very recently, in R. v. Abdelrahman, 2022 ONCA 798 at para. 7, the Ontario Court of Appeal observed that evidence must not be considered piecemeal, stating that “[i]t is an error of law to examine individual pieces of evidence in isolation, subjecting each of them to the standard of proof beyond a reasonable doubt; they must be considered in the context of all the evidence.”
The case against Dennis Mensah
[39] The following circumstantial facts are relevant to the case against Dennis Mensah relating to the offences involving the contents of the Lexus 475:
• He was observed on several occasions on May 24 and May 26, 2019, while driving the Lexus 475, engaging in behaviour consistent with drug trafficking. This included two incidents in which Dennis met very briefly with others in the car on May 24, and three incidents in the car on May 26
• Dennis drove the Lexus 475 frequently, and was seen many times driving the Lexus at 8110 Birchmount
• The security guard at 8110 Birchmount recognized the Lexus 475 driven by Dennis and had issued tickets for it when it was parked in the visitor parking area (at least one of which was found in the car when it was seized)
• Dennis was the only person seen driving the Lexus 475 on May 23, 24 and 26, 2019, or at any time
• Dennis was in possession of the Lexus 475 when arrested and had the keys to the car on his person
• Many pieces of ripped plastic bags or baggies were found in the driver side door of the Lexus 475 following Dennis’s arrest, and those pieces of plastic are consistent with drug trafficking behaviour as they are commonly used to package drugs
• The plastic bags or baggies in the door of the Lexus 475 were visible to the driver and readily accessible, and were similar to those found in the trap behind the passenger seat
• Drugs (fentanyl and carfentanil) and a large amount of cash ($19,850) were found in the trap of the Lexus 475
• A loaded firearm and a digital scale were also found in the trap of the Lexus 475
• Dennis was found with $515 in cash on his person when arrested
• Dennis had two mobile phones with him when he was arrested.
[40] Dennis was not the owner of the vehicle, and mere occupancy of a car does not create a presumption of possession. However, Dennis was seen driving the Lexus 475 frequently over a number of months and in the days leading up to and including the day of his arrest. There is no evidence of anyone else driving the vehicle. The owner of the vehicle could not be found at the address listed on the ownership registration.
[41] In R. v. Bonilla-Perez, 2016 ONCA 535 at para. 16, the Court of Appeal stated that “it is a common-sense inference that other parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them.” Additionally, it is well-accepted that guns and drugs go hand in hand, that guns are a tool of the drug trade, and that guns and drugs are valuable: R. v. Thompson, 2020 ONCA 261 at para. 11; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 359 at para. 1. It is a reasonable inference, therefore, that a “valuable amount of drugs would not be entrusted to anyone who did not know about them or where they were located”: R. v. Sandhu, 2017 ONCA 709 at para. 4, citing Watt J.A. in R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545.
[42] The drugs, gun and money were not visible in the car. However, Dennis’s exclusive use of the car observed by police between May 23 and 26, his use of the car over prior months as observed by a security guard at 8110 Birchmount, the actions of Dennis in the car prior to his arrest which were consistent with trafficking in drugs, the items found in the compartment that included a digital scale and a gun, the value of the items, and the possession of two mobile phones, all support the inference that Dennis was aware of and had control over the items found in the trap of the Lexus 475. In my view, this is the only reasonable inference to reach from the evidence.
[43] Counsel for Dennis points out that the police did not see any actual transactions in the Lexus; however, this is not surprising given the inability to see inside the car when Dennis was under surveillance. The nature of the brief encounters, and the fact that there were several of them are, as the police expert testified, consistent with drug trafficking.
[44] Counsel for Dennis argues that the police failed to obtain fingerprint or DNA evidence linking Dennis to the items found in the trap, nor did the police follow or investigate any of the alleged buyers who entered Dennis’s car. However, the police are not required to take every investigative step possible in order to unearth all evidence or to seek any possible evidence of innocence in the face of strong evidence of guilt. The lack of such evidence is not unreasonable and, in light of the strong circumstantial evidence, it does not raise a reasonable doubt.
[45] Counsel for Dennis points out that there were papers found in the Lexus 475 with other names on them which were not photographed or preserved; however, there is no evidence of anyone else driving the car and Dennis’s ongoing and frequent use of the car dispels any reasonable inference that someone else was using the car and that the items in the secret compartment were not known to Dennis.
[46] This case is quite different from R. v. Freeman, 2006 CanLII 8027 (Ont. C.A.), and R. v. Austin, [2015] O.J. No. 5375 (S.C.), both of which involved secret compartments but there was evidence of other users of the cars. Similarly, in R. v. Robinson, 2011 ONSC 4915, it was not established that the accused was the regular user of the car, in contrast to this case where there is abundant evidence of Dennis using the Lexus 475.
[47] In my view, while there may be some evidence that could give rise to other conclusions, considering the evidence as a whole, as I must do as the Court of Appeal recently emphasized in Abdelrahman, the only reasonable conclusion, based on logic and human experience, is that Dennis had knowledge and control of the items in the trap of the Lexus 475.
[48] Consequently, I find Dennis Mensah guilty as charged under Counts 2 – 7 of the Indictment addressing his knowledge and possession of the firearm, and of the fentanyl and the carfentanil which it is not disputed was possessed for the purpose of trafficking.
[49] Turning to whether Dennis knew of and had control over the $1850 found in the apartment at 713-8110 Birchmount, there is circumstantial evidence supporting such a conclusion:
• Dennis was identified as a tenant at 713-8110 Birchmount by a security guard at the building
• The security guard said he had seen Dennis many times at the building over the eight months prior to Dennis’s arrest
• Dennis had a key to the apartment at 713-8110 Birchmount and had a fob to enter the building
• An Ontario health card, pill bottle and “federal diversion program agreement” relating to Dennis were found on the kitchen counter in the apartment
• The ripped pieces of plastic bags or baggies found in the Lexus 475 were similar to those found in the bathroom hole at 713-8110 Birchmount.
[50] On the other hand, there is evidence of others having access to and using the apartment which supports inferences that the money found there was not known to or controlled by Dennis. The registered tenant of the unit was Marvin, whose personal belongings and identification were also found in the unit. Marvin and at least one individual were seen in the apartment earlier on the day of the search, and the money was found hidden in a shoe box, underneath some shoes.
[51] In my view, the circumstantial evidence supports a reasonable inference that Dennis knew of and had control over the money found in the apartment. However, the evidence also supports other reasonable inferences. Others had access to the apartment and someone other than Dennis might have had possession of the money and hid it in the shoe box. Unlike the items in the car, and the facts in Abdelrahman where there were direct links between the accused and the specific items found in the apartment in that case, the links between Dennis and what was found hidden in a shoebox are more limited and other reasonable inferences can be drawn than finding that Dennis knew of and had possession of that money.
[52] In reaching this conclusion I recognize that Dennis had ready access to and control over the unit. He was regularly seen there, he had a fob for the building and a key to the unit, and personal papers belonging to Dennis were found there. Furthermore, there were other items found in the apartment consistent with drug trafficking which would suggest that a frequent visitor would be aware of them and involved in drug trafficking. Nevertheless, although it may be likely that Dennis knew of the money, I cannot conclude that the only reasonable inference is that Dennis knew about its presence. Accordingly, I find Dennis not guilty of possession of the money found 713-8110 Birchmount, charged in Count 1.
The case against Marvin Mensah
[53] The following circumstantial facts are relevant to the case against Marvin relating to the offences involving the contents of the Lexus 080:
• The Lexus 080 was not in the parking spot assigned to 713-8110 Birchmount when the search commenced on May 26, 2019
• The Lexus 080 was found in the parking spot for unit 713 after Marvin arrived at 8110 Birchmount, during the search
• Marvin had a key to the Lexus 080 when he was arrested during the search
• Marvin was the registered tenant of the 713-8110 Birchmount
• The $1,510 cash found in the trap of the Lexus 080 was wrapped in a George Brown College course schedule for Marvin
• Fentanyl and carfentanil worth over $24,000, and a digital scale, were found in the trap of the Lexus 080
• Marvin had four mobile phones and $635 on his person when he was arrested
• On May 23 the driver of the Lexus 080 had a 45-minute rendezvous with Dennis when Dennis was driving the Lexus 475
• Vacuum-sealed bags of marijuana very similar to those found in 713-8110 Birchmount were found in the Lexus 080
• Torn plastic bags found in the hole at 713-8110 Birchmount were very similar to those found containing drugs in the Lexus 080.
[54] Marvin was not the owner of the Lexus 080. According to the police the registered owner was Jermaine Ferguson, about whom I know nothing. This, Marvin’s counsel submits, leaves open the reasonable inference that the owner put the contraband in the car without Marvin’s knowledge. I do not agree.
[55] In Marvin’s case there is less evidence of use of the car than with Dennis. However, parking tickets found in the car show that it had been parked at 8110 Birchmount on previous occasions where, of course, Marvin leased an apartment. Marvin and Dennis both had access to and frequently attended the apartment at 713-8110 Birchmount, suggesting a close relationship between them. Marvin was likely driving the Lexus 080 three days before his arrest when the car met up with Dennis in the Lexus 475 for a 45-minute meeting.
[56] There is very strong circumstantial evidence that Marvin was driving the Lexus 080 late in the evening on May 26, 2019, as the car was not in the parking lot of 8110 Birchmount at the outset of the search, but was found there, in the spot for unit 713, after Marvin arrived and was arrested, and he had the keys to the car.
[57] This case is different from R. v. Bjornson, 2018 ABCA 282, 365 C.C.C. (3d) 175, and R. v. Bailey, 2021 ONSC 8089, cited by Marvin’s counsel. As Nakatsuru J. commented at para. 114 of Bailey, in Bjornson it was the combination of car ownership by someone else and the “lack of evidence about the location of the drugs and paraphernalia” which caused the Court to find that there “remained a reasonable inference that the contents” belonged to the owner and not the accused. In Bailey, the accused was observed briefly driving his mother’s car when he was arrested, there was no evidence that he had used it previously, and there were no personal items in the car belonging to the accused that could tie him to the vehicle. Bailey lived with his mother, and it was a reasonable inference that he “was just using the vehicle to run a personal errand as opposed to trafficking in drugs.”
[58] In this case, however, evidence strongly supports the conclusion that the Lexus 080 was driven by Marvin to his own apartment late on the evening of May 26, 2019. The money found in the trap was wrapped in paper related to Marvin. That piece of paper, the course schedule from George Brown College for Marvin, is more than just “scrap paper”, as his counsel suggested. Rather, it is a very strong piece of circumstantial evidence tying Marvin to the items found in the trap, and permits the same common sense inferences that I discussed above regarding Dennis. This includes the “common sense inference that other parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them” (Bonilla-Perez, at para. 16), and the inference that a “valuable amount of drugs would not be entrusted to anyone who did not know about them or where they were located”: Sandhu, at para. 4.
[59] Marvin also had four cell phones with him and cash in separate bundles. Although his counsel points out that the police did not check to see if the cell phones were operable, it is highly unlikely that a person would be walking around with four non-functioning cell phones.
[60] Considering all of the circumstantial evidence, I have concluded that the only reasonable inference is that Marvin knew of and had control over the items in the trap of the Lexus 080 and he is therefore guilty of possessing carfentanil for the purpose of trafficking under Count 8 of the Indictment, and of possession of proceeds of crime, which is the $1,510 found in the Lexus 080, as charged in Count 9.
[61] In reaching this conclusion, I have not relied on circumstantial evidence of what was found in 713-8110 Birchmount. Therefore, it is not necessary for me to consider the issue raised in argument about considering evidence “across counts” or, put another way, whether evidence of what was found in the apartment can be used to support a finding that Marvin or Dennis had knowledge and control of what was found in their respective cars, or vice versa. See, e.g., R. v. Baksh, 2022 ONCA 481 at para. 26; R. v. Jahangiri, 2022 ONCA 644 at paras. 35–43.
[62] As for Count 1, there is circumstantial evidence that Marvin knew of and had control over the $1,850 found in the apartment at 713-8110 Birchmount, including:
• The apartment was leased to Marvin
• Marvin was seen in the apartment prior to the search warrant being executed on May 26, 2019
• Numerous pieces of identification for Marvin were found in the apartment
• Marvin came to the apartment during the search
• Cocaine and vacuum-sealed bags of marijuana were found in 713-8110 Birchmount
• Torn plastic bags and digital scale were found in the hole at 713-8110 Birchmount.
[63] On the other hand, others had access to the apartment. Dennis was frequently seen there, and some of his identification was found in the unit. At least one other unidentified person was seen on the balcony earlier in the evening on May 26, 2019. The money which is the subject of the charge was found in a shoebox, underneath some shoes, and could have been placed there by Dennis, or someone else.
[64] As I concluded in dealing with Dennis’s liability under Count 1, reasonable inferences can be drawn that the money found in the apartment might belong to someone else who hid it in the shoe box. In those circumstances, I cannot conclude that the only reasonable inference is that Marvin knew of and had control of that money. He likely knew of it, but that is not sufficient.
[65] Accordingly, I find Marvin not guilty of possession of the money found in 713-8110 Birchmount, charged in Count 1.
Paul B. Schabas J.
Released: December 16, 2022
COURT FILE NO.: CR-21-90000017 / CR-21-90000244
DATE: 20221216
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DENNIS MENSAH and
MARVIN NYARKO MENSAH
REASONS FOR JUDGMENT
Schabas J.
Released: December 16, 2022
[^1]: The search warrants issued for the two Lexus cars, the apartment at 713-8110 Birchmount Road, and for another location which was not relevant at trial, were the subject of an application under s. 24 of the Charter which was dismissed by K.L. Campbell J. on September 7, 2022: R. v. Mensah, 2022 ONSC 5091. The “tracking warrant” was not challenged.
[^2]: Under Count 5, which charges Dennis with being an occupant in a vehicle knowing there was a restricted firearm contrary to s. 94(1) of the Criminal Code, control is not necessary.