COURT FILE NO.: CR-21-90000159-00MO

DATE: 20220202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEPHEN GRANTIS and JACOB HUNTER

Respondent

Leanne Liu, for the Crown

Leah Shafran, for the Respondent

HEARD: February 1, 2022

LEIPER J.

INTRODUCTION AND BACKGROUND

1Stephen Grantis applies to quash his committal to stand trial on six counts of possession and possession for the purpose of trafficking in controlled drugs contrary to the Controlled Drugs and Substances Act (“CDSA”).

2Police officers charged Mr. Grantis, and his co-accused Mr. Jacob Hunter, with possession of various controlled drugs after an investigation, arrests of the two men, and a search warrant executed at a two-bedroom, short-term rental unit in a Toronto condominium building.

3After a preliminary inquiry, Mr. Grantis was committed to stand trial for drugs found on his person at the time of arrest, in the large bedroom of the rental unit (where his identification and other personal effects were also found) and in the closet of the second bedroom of the same unit.

4Mr. Grantis challenges his committal only on the charges relative to the drugs found in the second bedroom. He submits that the preliminary hearing judge exceeded his jurisdiction in committing him to stand trial on these charges in the absence of evidence or an available inference that he had knowledge or control over the items in the second bedroom.

5Crown counsel submits that the application should be dismissed, because in totality the evidence adduced at the preliminary inquiry supported the inferences that the Applicant had been staying in the unit and together with his co-accused, he had knowledge and control over all the drugs located within the unit.

SUMMARY OF THE EVIDENCE TENDERED AT THE PRELIMINARY HEARING

6On January 15, 2020, the police received information that Mr. Grantis was a person of interest in relation to drug trafficking. Police officers went to a condominium building at 65 Bremner Boulevard, Toronto, where they showed a photograph of Mr. Grantis to the security guard on duty.

7The security guard shared taped security footage from earlier that day with the police officers. As they were looking at the security footage, Mr. Grantis entered the building lobby using a key fob linked to a short-term rental unit, #3408. The officers watched the live feed from the security cameras as Mr. Grantis got off the elevator on the 34th floor.

8The officers went to the 34th floor. Approximately 15-25 minutes later, Mr. Grantis came out of Unit 3408. The officers arrested him, searched him incident to arrest, and found three packets of fentanyl in his pockets.

9The officers asked Mr. Grantis if anyone else was in the unit. He said there was a person in the unit. A few minutes later, Mr. Hunter came out of the unit into the hall. He was also arrested. The unit was secured pending a search warrant issuing.

10A Scene of the Crime (“SOC”) officer arrived, who took photos and notes during the search.

11The apartment was a two-bedroom, two-bathroom unit, with one bathroom being an ensuite located off the large bedroom. There was also a hallway, a kitchen and a living room in the unit.

Search and Seizure from Large Bedroom/Ensuite Bathroom

12Officer Benevides searched the large bedroom and ensuite bathroom. He located the following:

• A Ziploc bag containing 3.59 grams of methamphetamine in the top drawer of the nightstand;

• A Ziploc bag containing 4.26 grams of fentanyl in the top drawer of the nightstand;

• OHIP and Ontario Driver’s Licence cards belonging to the Applicant in the top drawer of the nightstand. The driver’s licence listed a different residential address for the Applicant than the Bremner Boulevard address;

• A VISA card with no name on it;

• A fanny pack on the floor next to the bed and nightstand, containing a BB gun and a prescription pill bottle in the name of the Applicant;

• A laptop computer (not tested by police); and

• A pipe on the nightstand.

13Police also located items which they believed belonged to a female, such as a hair straightening iron in the ensuite bathroom and a box of tampons in a suitcase in the large bedroom closet.

Search and Seizure from the Second Bedroom

14Officer Pinto searched the second bedroom. He testified that he located a black BB gun on the bed and a red GoodLife gym bag (the “red gym bag”) in the closet, zipped closed and containing various drugs, which tested as follows:

• 4.71 grams of cocaine;

• 51.16 grams of methamphetamine;

• 72.22 grams of MDMA; and

• 215.59 grams of benzocaine (a non-controlled substance).

15Officer Pinto did not locate any identification in the second bedroom. There was an unidentified cell phone photographed on top of the nightstand in the second bedroom. A navy tote bag and at least 15 packages of cigarettes were also photographed on the bed in the second bedroom.

16The SOC officer did not photograph the red gym bag. The SOC officer testified that the photographs of the drugs found inside the red gym bag were taken at the police station.

17Officers Galamiyeva and Benevides testified that they did not recall seeing the red gym bag. Officer Pinto testified that after he located it, he brought it out to the living room and informed his fellow officers of what he found. The red gym bag was not seized.

Other Items Located in the Common Areas of the Unit

18In addition to the items found in the two bedrooms, a BB gun was located inside a suitcase in the front hallway. A scale was located in the kitchen and photographed on the counter near the sink along with a document that appeared to be a debt list. These items were apparently in plain view or could have been found to be in plain view on this record. No fingerprint testing or handwriting analysis was conducted on the BB gun or the debt list.

19The evidence at the preliminary inquiry was that the total quantity of methamphetamine seized from the unit was worth between $1,600 and $6,200, depending on whether it was sold in wholesale amounts or at the gram level. The total quantity of MDMA located in the unit was worth between $900 and $5,900, similarly depending on whether it was sold in wholesale amounts or at the gram level.

The Committal for Trial

20Following the preliminary inquiry, the Honourable Justice S. Clark committed the Applicant to stand trial on the following counts:

From the Search on Arrest:

(i) Possession of Schedule I Substance (Fentanyl) for the Purpose of Trafficking, contrary to section 5(2) of the CDSA;

(ii) Possession of Schedule I Substance (Fentanyl), contrary to section 4(1) of the CDSA;

From the Top Drawer of the Nightstand in the Large Bedroom:

(iii) Possession of Schedule I Substance (Fentanyl) for the Purpose of

(iv) Trafficking, contrary to section 5(2) of the CDSA;Possession of Schedule I Substance (Fentanyl), contrary to section 4(1) of the CDSA;

From the Red Gym Bag in the Second Bedroom:

(v) Possession of Schedule I Substance (Methamphetamine) for the Purpose of Trafficking, contrary to section 5(2) of the CDSA;

(vi) Possession of Schedule I Substance (Methamphetamine), contrary to section 4(1) of the CDSA;

(vii) Possession of Schedule I Substance (MDMA or Methylenedioxyamphetamine) for the Purpose of Trafficking, contrary to section 5(2) of the CDSA;

(viii) Possession of Schedule I Substance (Cocaine), contrary to section 4(1) of the CDSA;

(ix) Possession of Schedule I Substance (Cocaine) for the Purpose of Trafficking, contrary to section 5(2) of the CDSA; and

(x) Possession of Schedule I Substance (MDMA or Methylenedioxyamphetamine), contrary to section 4(1) of the CDSA.

THE REASONS OF THE PRELIMINARY INQUIRY JUDGE

21The preliminary inquiry judge reviewed the theory of the Crown that Mr. Grantis and Mr. Hunter were engaged in a joint enterprise to traffic in drugs, and that the evidence placed them jointly in possession and control of all the drugs in the unit.

22The learned judge summarized the evidence tendered by the Crown and reviewed the legal principles to establish possession, as defined in section 4(3) of the Criminal Code.

23The learned judge identified the case for the Crown as circumstantial in nature. He described his obligation to consider the totality of the evidence to decide what reasonably available and logical inferences “could” support committal. He concluded that if a reasonable inference in favour of the Crown was available, then regardless of its strength, the court would be required to draw that inference for the purpose of applying the test on committal.

24The learned judge properly instructed himself that he should not employ speculative reasoning in considering the available inferences, while noting that it is not always straightforward to distinguish between an inference and speculation.

The Circumstantial Evidence and the Inferences Found to be Available by the Preliminary Inquiry Judge

25The preliminary inquiry judge began with what he found to be a “cogent” piece of circumstantial evidence: that just prior to his arrest, Mr. Grantis came out of the unit, leaving his co-accused, Mr. Hunter, alone inside the unit. The learned judge found that the jury could draw a logical inference about the nature of their relationship based on that evidence: namely, that Mr. Grantis trusted Mr. Hunter with valuable items inside the unit.

26The learned judge asked rhetorically whether the discovery of the scales and debt list, as well as the BB gun in the second bedroom in plain sight and its striking similarity to a BB gun in the large bedroom, were all a coincidence. He characterized these items as “evidentiary links”. The learned judge also referred to the presence of the suitcase in the hallway as “another link”.

27From there, the preliminary inquiry judge reviewed the defence submissions on behalf of Mr. Hunter. In discussing Mr. Hunter’s role in the offences charged, and occupancy of the unit, the learned judge remarked that there was a reasonable inference from the items found in the large bedroom that this was Mr. Grantis’ bedroom.

28The learned judge concluded that the following inferences were available to a trier of fact:

• Just because drugs or guns are out of sight does not mean that there can be no inference of knowledge or control;

• Mr. Grantis was a resident of the unit, either as a tenant or an owner, but not a mere visitor;

• There was considerable value to the drugs and guns located — this adds weight to the inference of control;

• Drugs and guns do not end up in a location on their own — it is a reasonable inference that those connected to the subject residence are more likely to have placed them there; and

• Overall, the totality of the evidence supports the inference sought by the Crown and amounts to more than an educated guess or speculation.

ANALYSIS

(a) The Legal Framework on Review

29The preliminary inquiry judge correctly instructed himself on the law of possession and the approach to circumstantial evidence in the context of a preliminary inquiry. He identified the task of carrying out a “limited weighing” to assess the reasonableness of the inferences available from the circumstantial evidence. See R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52, at paras. 23, 30, and 33.

30On review of a preliminary inquiry judge’s decision, it is not for the reviewing judge to “redo the limited weighing function”. See R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28. A reviewing judge should only intervene if the preliminary inquiry judge fails to exercise or exceeds their statutory jurisdiction: see R. v. Wilson, 2016 ONCA 235, per Benotto J.A. at paras. 27-28.

31A preliminary inquiry judge’s determination is entitled to great deference. The role of a reviewing judge is to decide whether there was an evidentiary basis on which the court below could form its opinion that the evidence was sufficient to justify a committal for trial. R. v. Wilson, at para. 28 and R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

(b) Was there an evidentiary basis for the committal to stand trial?

32Counsel for Mr. Grantis submits that the preliminary inquiry judge fell into error in his appreciation of the evidence, and that the errors he made affected his decision to commit Mr. Grantis for trial on the drugs found in the red gym bag.

33I disagree. I conclude that the learned judge did not misapprehend the evidence or fall into error in concluding that he could draw the inference that Mr. Grantis was in joint and/or constructive possession of all the illicit items found in the unit. I will address each evidentiary issue in turn.

The Nature of Mr. Grantis’ Occupancy of the Unit

34Counsel for Mr. Grantis submits that the judge’s finding that Mr. Grantis was a “resident”, meaning either “an owner or tenant” was not supported by the evidence of Officer Benevides, who testified that the owner was renting out the unit on a short-term basis. Mr. Grantis had gained access to the building using a key fob associated with the short-term rental unit.

35Counsel for Mr. Grantis submits that the learned judge’s misapprehension that Mr. Grantis could have been an owner of the unit was a key piece of the reasoning he applied in committing Mr. Grantis to stand trial.

36While I agree that the evidence at the preliminary inquiry did not support an inference that Mr. Grantis owned the unit, it did support residence, if on an unknown and possibly short-term basis. Mr. Grantis had personal effects in the unit, including medication and identification. There was a suitcase in the closet of the large bedroom. Mr. Grantis had a key fob that gave him access to the unit. He did not have to rely on the other person in the unit to admit him to the unit.

37The evidence supported an inference that Mr. Grantis could have been a resident or tenant of the unit in which the items were found.

Location of the Red Gym Bag

38Counsel for Mr. Grantis also submits that the learned judge misapprehended the evidence as to the location of the red gym bag. He argues that the learned judge was confused, because he mentioned that clothing and the laptop were found in the second, smaller bedroom, when in fact these two items were found in the large bedroom.

39Crown counsel concedes that this evidence was misstated by the learned judge but submits that the learned judge did not rely on those items in identifying the potential logical inferences of possession of the red gym bag and its contents. Counsel for Mr. Grantis fairly agreed that this was the case.

40I agree. The reasons for decision given by the preliminary inquiry judge reveal no misapprehension about the location of the red gym bag, nor of the salient items (drugs, identification and replica firearm) in the large bedroom apparently occupied by Mr. Grantis. Any misstatements about the location of the other items do not affect the findings made by the learned judge.

The Similarities of the Imitation Handguns

41Counsel for Mr. Grantis further submits that the learned judge misapprehended the similarities among the three BB guns located in the unit: although he referred to these as “strikingly similar”, the evidence was that the two black BB guns were not the same model, and the third BB gun had a brown handle. The officer who located them described them as being different from one another. However, they were all BB guns designed to look like handguns. They were either brown or black in colour. The photographs of those guns clearly show similarities in size, nature and operation (gas cartridge). These imitation weapons were not identical but could fairly be described as like one another.

42Alternatively, counsel for Mr. Grantis submits that even if the preliminary inquiry judge did not misdescribe the three guns as “similar”, he erred in drawing the inference that the guns had a common source.

43I do not read the learned judge’s reasons as saying that all three guns had a common source, in the sense of either manufacturer or vendor. Rather, the reasons connect the relationship between illicit substances, handguns (or replicas of handguns) and other paraphernalia typically used to measure, package and track the sale of those substances. I find there was no error in the learned judge’s treatment of the replica guns in the unit that undermined his conclusions on the available inferences at trial.

Different Drugs, Different Packaging in the Red Gym Bag

44Counsel for Mr. Grantis submits that the preliminary inquiry judge failed to consider that the drugs in the red gym bag were different in nature and packaged differently from the drugs in the large bedroom. These may be legitimate arguments to be made at trial, given that the red gym bag with the largest “stash” was not seized or photographed on scene, and given that the two searching officers other than Officer Pinto, who located the red gym bag, did not recall seeing it. This is a potential issue of continuity of evidence.

45However, there is some evidence from one officer that the red gym bag was in the unit. The drugs connected to the red gym bag were later photographed at the station. This is some evidence at a preliminary inquiry that the learned judge could rely upon. The different packaging and different drugs apparently located in the red gym bag do not logically rule out Mr. Grantis having joint possession and control over them, given the totality of the other evidence, including his access to the unit, his possession of drugs on his person consistent with being for the purpose of trafficking in drugs, the other items located in the bedroom and the evidence of drug trafficking paraphernalia in plain view, including the debt list and the scale in the kitchen.

46Further, although the learned judge’s comments about the level of trust shown by a co-occupant by leaving him with valuable items might be read as assuming possession of an item that was in issue, the facts also permit of a different reading: that Mr. Grantis trusted Mr. Hunter with items that had value to him in the large bedroom, namely, quantities of drugs consistent with trafficking activity, his personal identification and a replica handgun.

Cases with Analogous Facts: Analysis and Distinguishing Features

47Courts have grappled with evidence of possession where multiple people have access to a private residence. Counsel for Mr. Grantis relied on three such examples.

48In R. v. Blais, 2016 ONSC 4435, police executed a search warrant in an apartment rented by the accused. Police saw the accused leave and entered to perform the search. They located the co-accused inside the apartment sitting on a sofa and a loaded handgun hidden under a sofa cushion. The accused was committed to trial. In quashing the committal, Carey, J. found that the accused’s control “generally” of the apartment shortly before the police arrived did not permit an inference that he knew about the hidden handgun, especially given the presence of the co-accused.

49In R. v. Allison, 2016 ONSC 3073, the accused entered an apartment shortly before it was searched. The accused had a key and had been seen to enter the apartment. Inside the apartment were many pairs of shoes, and hats belonging to others who apparently had access to that apartment. The apartment was in disarray. A closed box containing the accused’s photo ID was located inside a larger bin in which contained among other things, a loaded handgun and cocaine. The accused was discharged on various firearm and drug offences. The reviewing judge, Trotter, J. (as he then was) held that the preliminary inquiry judge had not erred in finding that the Crown’s argument in favour of possession by the accused was speculative and rested on a string of inferential leaps.

50Finally, in R. v. Fisher, 2019 ONSC 6829, police searched a one-bedroom apartment in a rooming house and found a handgun in a drawer of the bedroom. The accused was apprehended near the apartment and there was evidence from which it could be inferred that he had entered the apartment earlier that day. The preliminary inquiry judge discharged the accused on possession of a prohibited firearm. Copeland, J. held that the preliminary inquiry judge had not erred in concluding that the evidence of the accused’s connection to the apartment was weak and none of it specifically connected him to the bedroom where the gun had been hidden.

51These cases demonstrate that there is no presumption that a person’s access, occupancy or residence of an apartment or rental unit will mean that they are legal possession of anything and everything within that apartment or rental unit. The entire context of the case must be considered to determine the available reasonable inferences. In this case, I find that the facts are distinguishable from the scenarios described in Fisher, Allison and Blais.

52Crown counsel submits that the evidence at this preliminary inquiry logically allows the following inferences to be drawn:

i. The Applicant resided in the unit;

ii. The Applicant was returning to the unit when he was seen accessing the building with a key fob on the date of his arrest;

iii. The Applicant occupied the primary bedroom in the same unit, because his personal identification and medication were found there;

iv. The Applicant, having occupied the primary bedroom, was aware of the drugs and replica firearm found in that bedroom;

v. The Applicant, by virtue of being in the unit moments before his arrest, was aware of the debt list and digital scale in plain view in the kitchen;

vi. The Applicant was using the debt list and digital scale in the kitchen;

vii. The Applicant was a drug trafficker;

viii. The Applicant was going to sell the three individually packaged quantities of fentanyl found on his person;

ix. The drugs in the red gym bag, particularly the methamphetamine and MDMA, were a valuable commodity;

x. The Applicant stashed his drug supply in the red gym bag;

xi. When the co-accused left the unit, the $1,190 he had on his person was the proceeds of crime; and

xii. The rental unit was being used to hold illicit contraband relating to drug activities.

53I agree that these were all reasonable inferences available to the learned preliminary inquiry judge. They did not require “inferential leaps” or speculation. Although there might be other possible inferences to be drawn about what was taking place in Unit #3408, the constellation of evidence permits one to infer that this unit was being used to prepare illicit drugs for sale.

54The facts that support this inference include:

• the presence of imitation firearms in three locations,

• the packaged fentanyl for sale in Mr. Grantis’ pockets,

• Mr. Grantis’ knowledge of, and proximity to the other person in the unit,

• Mr. Grantis’ identification and drugs being kept together in the large bedroom,

• the paraphernalia related to drug trafficking (scale and debt list) in the kitchen,

• the bag of drugs in the red gym bag in the closet of the second bedroom, and,

• the imitation handguns found in both bedrooms and in the common area of the unit.

55Unlike the circumstances in the cases relied on by Mr. Grantis, these dots can be connected to support the inference urged by Crown counsel at the preliminary inquiry, and found by the learned preliminary hearing judge, that Mr. Grantis and his co-accused were jointly using the unit as a base from which to sell drugs.

56I conclude that while the evidence may support other competing inferences, the preliminary inquiry judge did not fall into error in concluding that there was sufficient evidence to support a committal for trial relating to the drugs found in the red gym bag inside the second bedroom in the unit.

CONCLUSION

57The Application is dismissed.

Leiper J.