Court File and Parties

COURT FILE NO.: CR-19-0159-00 DATE: 2023-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING D. Hayton, for the Federal Crown T. Fairchild, for the Provincial Crown

- and -

Adrian Myles Puentes-Reed and Kalid Yousuf Accused

R. Rusonik, for Puentes-Reed F. Thatcher, for Yousuf

HEARD: September 21, 22, 23, 26, 27 and 28 2022, at Thunder Bay, Ontario

Mr. Justice F.B. Fitzpatrick

Trial Decision

[1] I have rendered my decision in this case in writing. By the end of today I will provide the parties a copy of these final written reasons for decision as I have read them. This final version, which reflects what I am about to read out loud to all of you, will be entered as the next Exhibit at this trial.

[2] Adrian Myles Puentes-Reed and Kalid Yousuf stand jointly charged with eight separate counts for the following offences:

1. possession of proceeds of crime in excess of five thousand dollars (count 1)
2. possession of cocaine for the purposes of trafficking (count 2)
3. possession of marihuana for the purposes of trafficking (count 3)
4. possession of a restricted Glock 17 handgun with readily accessible ammunition capable of being discharged in said firearm (count 6)
5. possession of a Browning 1935 handgun without being a holder of a licence for it (count 12)
6. possession of a prohibited Diamond Back handgun without being a holder of a licence for it (count 13)
7. possession of a prohibited FN Browning 1900 handgun without being a holder of a license for it (count 14)
8. possession of a prohibited device (a firearm magazine) without being a holder of a licence for it (count 17)

[3] At the commencement of the trial the Crown requested a stay of counts 4, 5, 7, 8, 9, 10, 11, 15, 16 and 18 of the indictment before the Court.

[4] Both men pleaded not guilty to all remaining charges.

Background

[5] The parties submitted a joint statement of admissions to the Court. It was filed as the first Exhibit in this trial. It is attached as Appendix 1 to this judgment. I repeat and rely on those agreed facts to come to my decision in this matter.

[6] On June 15, 2018, at around noon, Mr. Puentes-Reed and Mr. Yousuf were found asleep in separate bedrooms on the third floor of a townhouse located in Thunder Bay. The address of the residence was 124 Ruttan Avenue (the Residence). The right of the police to enter and search the Residence was not disputed in this trial.

[7] Mr. Puentes-Reed and Mr Yousuf were arrested on the spot. This is because the Residence contained a number of illegal items in plain view. Items like handguns, drugs, and a very large amount of cash bundled in a manner that suggested the cash was proceeds of crime. In the agreed statement of facts Mr. Puentes-Reed and Mr. Yousuf deny they were in possession of any illegal items found in the Residence that day.

The Evidence

[8] Five police officers testified for the Crown. Also, the Crown called an expert witness who was qualified to give expert opinion evidence on the use, distribution, pricing, observable effects, trafficking and packaging of cocaine, crack cocaine, oxycodone, hydromorphone, and cannabis marijuana as well as the details of the production, distribution, including how drugs are paid for and how debts for drugs purchased are protected, paraphernalia, jargon and practices and habits of drug users and traffickers. Mr. Puentes-Reed testified in his own defence. Mr. Yousuf did not testify.

[9] In my view, in light of the extensive and detailed nature of the statement of admissions submitted in this matter, the non-expert viva voce evidence of the officers involved in the search of the Residence and arrest of the accused was focused on some narrow issues about the events. There was a narrow issue from the evidence of several of these officers about how Mr. Yousuf’s wallet made it from the third floor where he was arrested to the second floor where it was photographed. There was a narrow issue about where Mr. Puentes-Reed’s wallet was located and whether it did or did not come from a pair of black pants that were found in the same room where he was found sleeping. I will address those issues later in the discussion of the evidence. However other than those narrow issues, in my view the factual underpinnings of the case for the Crown were contained in the statement of admissions.

[10] Before turning to a discussion of all the evidence I will address the law applicable to the circumstances in this case.

The Law

[11] The parties agree the case turns on the issue of whether or not the Crown has proven beyond a reasonable doubt that Mr. Puentes-Reed and Mr. Yousuf were in possession of the illegal items found in the Residence that day. The parties agree that a useful summary of the law concerning possession and circumstantial evidence was recently discussed in a decision coincidentally authored by me, R. v Samuels et al, 2022 ONSC 4565. In that decision at paragraph 18 I relied on another recent Thunder Bay case from the Superior Court of Justice given by my colleague Nieckarz J. (R v. O’Keese, 2022 ONSC 1282) to set out the following concerning circumstantial evidence from the O’Keese judgment paragraphs 52 – 56:

[52] Circumstantial evidence is evidence of another fact that could lead to the conclusion or inference that the accused is guilty. It is evidence that implies a person committed the crime they are charged with. See: R. v. Cinous, 2002 SCC 29, at para. 89.

[53] The words and actions of an accused after a crime has been committed may provide circumstantial evidence of his guilt with respect to that crime: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106.

[54] For an accused person to be found guilty on the basis of circumstantial evidence, it must be that their guilt is the only reasonable inference to be drawn from the whole of the circumstantial evidence, based on reason and common sense. See: R. v. Villaroman, 2016 SCC 33 at paras. 35, 36 and 41.

[55] The Court is required to consider other plausible theories and reasonable possibilities that are inconsistent with guilt. If there are reasonable inferences to be drawn from the evidence, or lack of evidence, other than the guilt of the accused, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt, and the Crown has not met its burden of proof. See: R. v. Villaroman, at paras. 35, 37 and 41; and R. v. Tutiven, 2022 ONCA 98, at paras. 73 and 76.

[56] The Supreme Court of Canada at para. 37 of R. v. Villaroman, clarified that while “other reasonable possibilities” inconsistent with guilt must be considered, the Crown need not “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.”

[57] The alternative inferences to be considered must also be reasonable, and not just possible. They do not have to arise from proven facts but they do need to be based on logic and experience applied to the evidence or lack of evidence, and not merely on speculation. See: R. v. Villaroman, at paras. 35, 37 and 41.

[12] Both accused are charged with possession of a number of illegal items.

[13] Section 4(3) of the Criminal Code provides:

Possession

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[14] In R. v. Morelli, 2010 SCC 8 at paragraph 17 Fish J. set out the test for constructive possession as follows:

17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[15] Tenancy or occupation of a place where an object is found does not create a presumption of possession: R v Choudhury, 2021 ONCA 560 at para 19.

[16] As Mr. Puentes-Reed testified in this matter the principles from the Supreme Court of Canada in the leading case R v. W.(D.), [1991] 1 S.C.R. 742 are engaged. At pages 757-58 of the reasons, the Supreme Court of Canada set out the W.(D.) framework as follows:

The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved by R. v. Morin, supra, at p. 357 [[1988] 2 S.C.R.].

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[17] The accused’s version of events is not to be considered in isolation as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.

[18] Dealing with the second step of the test, Binnie J. wrote for a unanimous Supreme Court in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10-13:

The precise formulation of the W.(D.) questions has been criticized.

As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.

W.(D.) clarifies that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. Justice Cory stated, in W.(D.) at p. 757, that:

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

[19] The third step of the W.(D.) analysis is engaged where the totality of the defence evidence is rejected. This then leaves the evidence to be assessed on whether the Crown has discharged its burden of proof beyond a reasonable doubt.

[20] In R. v. Woollam, 2012 ONSC 2188, (leave to appeal dismissed, 2013 ONCA 711), Durno J. reiterated, at para. 52, that:

W.(D.), does not mandate an examination of the evidence favouring the defence in isolation from the rest of the evidence. In assessing Crown or defence witnesses, the trier of fact must consider their evidence in the context of all of the evidence, including whether it was internally consistent, whether it was consistent with other evidence called, the witness' demeanour and whether their evidence accords with logic, common sense and human experience.

The Evidence of the Crown

[21] As noted previously because of the admissions made in the statement of admissions, I do not see it as necessary to give a detailed recitation of the evidence of the five officers who actually entered the Residence that day. From the evidence I find that Constable L. Barenz seized Mr. Yousuf’s wallet from him immediately upon his arrest. Constable Barenz placed the wallet at the door of the bedroom. Another officer or perhaps Constable Barenz moved the wallet to the second floor where it was ultimately shown in photographs entered on consent in this trial. It is agreed Mr. Yousuf was present in the Residence when he was arrested. I agree with the submissions of Mr. Yousuf’s counsel that the only evidence that links Mr. Yousuf to the other illegal items found elsewhere in the Residence is the fact that he was physically found, asleep, in one bedroom of a three-bedroom, three-story townhouse. I will discuss later whether that proximity is sufficient for a finding of guilt beyond a reasonable doubt.

[22] There was some dispute about where Mr. Puentes-Reed’s wallet was found. Mr. Puentes-Reed testified it was taken from his pants pocket as he was arrested. He had been sleeping with his pants on. I find from the evidence he had the wallet in his pants pocket. It was found incident to arrest. In my view this fact does not raise a reasonable doubt about the issue of whether the Crown has met its burden of proof.

[23] I turn now to the expert testimony of Detective Constable Jason Vander-Vegte. Detective Constable Vander-Vegte was qualified to give expert opinion evidence concerning drugs and the drug trade. Again, due to the nature of the admissions as to the drugs, guns and volumes of cash found in the Residence, the majority of the evidence of Detective Constable Vander-Vegte was instructive but did not take on the usual significance one would expect in a drug case where the necessity of expert evidence is needed to identify the substances at issue.

[24] However, Detective Constable Vander-Vegte’s evidence concerning the manner in which the drug trade was being carried out in Thunder Bay in the spring and early summer of 2018 was most useful to the Court.

[25] Recently, a number of drug cases have come before our Court here in Thunder Bay. It is a notorious fact, regrettably, that there is, and has been for several years, a serious and organized drug trade being carried out in Thunder Bay. It has been going on since before the pandemic hit in 2020. This is driven by the fact that the street price in Thunder Bay for illegal drugs is significantly higher than it is in the more populous markets of Southern Ontario.

[26] Detective Constable Vander-Vegte testified that a favoured method of distribution in Thunder Bay involves a dealer or a gang of dealers taking over residential premises. These dealers are, more often than not, not permanent residents of Thunder Bay. They are assisted by local residents, who often initially “consent” to the takeover of a residence as a kind of storefront. The out-of-town dealers arrive either by air, bus or car. They come prepared to stay here for as long as their supply lasts. They live in a transient manner. They carry paraphernalia to mix, measure and package the drugs that will be placed on offer. Their presence is announced either through covert social media channels or by word of mouth. Foot traffic attends at the location. Sales of drugs are made. Guns are often kept at these locations to intimidate or impress customers and deter opposing drug dealers.

[27] This type of takeover of a residential property where sales are made to “retail customers” causes the location to be known as a “trap house”.

[28] According to Detective Constable Vander-Vegte, in this drug network business model, complimenting the commercial function of a trap house, is the drug dealers’ use of a “safe house”. A safe house is a property located in Thunder Bay where large cash proceeds from daily or weekly operations as well as other supplies can be safely stored before they can be returned to Southern Ontario or elsewhere. Street level buyers are not directed to the safe house. The purpose of the safe house is to avoid drawing attention from anyone. It is to be a safe place from the police and potential rivals.

[29] In terms of drug debts, Detective Constable Vander-Vegte agreed that drug dealers occasionally take collateral. This can be in the form of official documents, like passports or driver’s licenses.

The Defence Evidence

[30] Mr. Yousuf did not testify. Mr. Puentes-Reed did. Mr. Puentes-Reed’s father, Manuel Puentes, also testified. I will first discuss the evidence of Manuel Puentes.

[31] Mr. Puentes lives in Calgary. He is a businessman. He has worked as an international diplomat as well as in the music industry. His history of work in the music business, particularly in the booking of live acts in nightclubs in the United States, was relevant to his testimony concerning the activities of his son in Thunder Bay.

[32] I believed much of Mr. Puentes’ testimony. However, I am of the view Mr. Puentes was deceived by his son as to Mr. Puentes-Reed’s true purpose for coming to Thunder Bay. I will discuss that finding later. For now, I will recount the testimony I believe and accept.

[33] In the spring of 2018 Mr. Puentes was actively supporting his son’s career. Mr. Puentes-Reed wanted to become a commercially successful hip-hop artist. Mr. Puentes has no background in this music genre. However, by early 2018 Mr. Puentes-Reed had produced material that was of interest to another commercially successful hip-hop artist. This justified Mr. Puentes’ confidence that continued investment in his son’s career as an artist made some sense. To that end Mr. Puentes sent his son money. Mr. Puentes also bought “gear”: software, microphones, speakers and mixers necessary to operate a recording studio. From Amazon emails placed in evidence it appears the total value of this gear was approximately $4,000. Mr. Puentes arranged it to be shipped to the Residence in Thunder Bay. Mr. Puentes wanted Mr. Puentes-Reed present at the Residence when the valuable electronic gear was shipped to that address. This is because Mr. Puentes was fearful of the equipment being stolen by “porch pirates”.

[34] Mr. Puentes stayed at the Residence during a visit he made with his son to Thunder Bay in April 2018. At the time Mr. Puentes was at the Residence, there was no evidence of an active drug operation at the Residence.

[35] Mr. Puentes arranged to have the address for the Residence listed as the corporate address for a company called BFG. This business was intended to be operated by Mr. Puentes-Reed as a hip-hop recording studio. Mr. Puentes gave his son his own credit card, an AMEX supplementary card. As well Mr. Puentes gave his son a CIBC debit card. These credit instruments were to be used for “extraordinary expenses”. He paid for his son to fly to Thunder Bay on a return ticket in June 2018. The flight left Toronto on June 7 and Mr. Puentes-Reed was to return to Toronto on a flight on June 10, 2018.

[36] When Mr. Puentes and Mr. Puentes-Reed have travelled together in the past, Mr. Puentes observed that his son “keeps stuff in his bag” and “lives out of his suitcase”. Mr. Puentes’ practice of hanging up his clothes or putting them away while travelling was not adopted by Mr. Puentes-Reed, while they were traveling together.

[37] I believed Mr. Puentes when he testified he did not know his son’s friends or contacts. I believed Mr. Puentes when he said he was not involved in Mr. Puentes-Reed’s personal life, in particular having any knowledge of his girlfriend’s identity in the spring of 2018.

Testimony of Mr. Puentes-Reed

[38] The central issue at this trial for Mr. Puentes-Reed is whether the Crown has proven beyond a reasonable doubt that he was in possession of the various illegal items in the Residence at the time of his arrest, when he was found by police passed out in one of the bedrooms of the Residence. The parties referred to this bedroom as the “primary bedroom”. According to the agreed facts, in a walk-in closet in the primary bedroom was found a significant amount of cash, approximately $470,000. The cash was located in a duffle bag as well as in two shoe boxes. There was a backpack in the primary bedroom containing $35,000.00 in cash. The bundling of the cash suggests it was from the drug trade. Also, there was a bag containing 527 grams of marijuana in the closet. In a dresser drawer near the bed where Mr. Puentes-Reed was found passed out was located Mr. Puentes-Reed’s passport and 20 oxycodone pills. Mr. Puentes-Reed did not have a valid prescription for these drugs.

[39] I find on the evidence given at this trial that the extent and nature of the other drugs, paraphernalia, cash, guns and ammunition found elsewhere in the Residence lead to a conclusion beyond a reasonable doubt that the Residence was a safe house as described by the expert evidence of Detective Constable Vander-Vegte. It was admitted that given amounts, packaging and value of each drug seized, the only reasonable inference is that the purpose of the drugs was for trafficking.

Mr. Puentes-Reed’s Evidence

[40] Mr. Puentes-Reed testified in his own defence.

[41] Mr. Puentes-Reed testified about his actions over about a one-year period, starting in 2017 and then ending with a particular focus on events from April 2018 until the time he was arrested in Thunder Bay on June 15, 2018. Mr. Puentes-Reed spent a good deal of time testifying in chief about his hip-hop career. This evidence focused on Mr. Puentes-Reed’s career as a hip-hop artist and his desire to build and operate a recording studio for this music genre in Thunder Bay. I do not doubt that Mr. Puentes-Reed was validly pursuing a career as a hip-hop artist in Toronto prior to his arrest. However, in my view, believing that aspect of his evidence does not create the circumstances where I am left in reasonable doubt about the reasonable inference that he was in possession of the items found in the Residence when he was arrested there.

[42] Mr. Puentes-Reed testified that he wanted to build and operate a hip-hop studio in Thunder Bay. I find this evidence to be of the same quality as the evidence about his career. Wanting to build a studio somewhere in Thunder Bay does not raise a reasonable doubt about his possession of the things in the Residence when he was arrested. His hip-hop career and his aspirations to operate a studio do not serve to explain away, justify or provide a reasonable alternative explanation for his presence in the Residence in a way that leaves me in a reasonable doubt about his possession of the items found there.

[43] I do not doubt that Mr. Puentes-Reed wanted to build and operate a hip-hop studio in Thunder Bay in 2018. Mr. Puentes-Reed’s testimony was that it was not his intention that the Residence was going to be the location of this business. I do not believe that particular aspect of his testimony nor am I left in reasonable doubt by it. I believe he fully intended to occupy and control the Residence both for the purposes of his business and to be a participant in the drug trade from that location.

[44] I say this because of business and legal documents directly connected to Mr. Puentes-Reed that were found in places in the Residence other than the primary bedroom. These documents were:

• a Canada Revenue Agency (CRA) remittance document for a business “Built for Greatness” which listed the address of the Residence, 124 Ruttan Street Thunder Bay dated April 30, 2018;
• a CRA registration confirmation notice dated May 2, 2018 for “Built for Greatness” listing the address of the Residence, 124 Ruttan Street Thunder Bay;
• a CRA statement of account for current source deductions dated April 30, 2018 for “Built for Greatness” listing the address of the Residence, 124 Ruttan Street Thunder Bay;
• 4 envelopes addressed to Adrian Puentes-Reed from the Calgary parking authority. There were various offence dates which included November 1, 2017 and October 28, 2017.

[45] Mr. Puentes-Reed explains the presence of these documents by suggesting he had left the documents in the Residence on a previous occasion. This evidence is not credible. According to Mr. Puentes-Reed he had “rented” the Residence for a week in April 2018. In my view these were not documents of the type that just get left behind after renting a place like a hotel room or an AirBnB. The CRA documents were sent to the Residence because Mr. Puentes had registered the Built for Greatness Business to that location. The only logical conclusion for why he did that is because his son was going to occupy the Residence on more than a transitory basis.

[46] I do not believe Mr. Puentes when he said he simply had to register some address in Ontario for the business. This does not make business sense. It makes no sense to register an address, with the expectation that some other address was going to be utilized. Mr. Puentes testified about the difficulty he encountered trying to change the address once Mr. Puentes-Reed was arrested at the Residence. This confirms my view that Mr. Puentes was instructed by his son to register the business at the Residence.

[47] Also Mr. Puentes’ evidence about not wanting to treat the Residence as the address for the hip-hop studio is inconsistent with his sending of expensive gear to that very address. Mr. Puentes and Mr. Puentes-Reed had other options for addresses in Ontario. Mr. Puentes-Reed testified he had stayed on occasion in an apartment in Brampton occupied by the mother of his girlfriend. There was no independent evidence or even suggestion in the evidence of Mr. Puentes-Reed or Mr. Puentes that there was any particular urgency to registering the business address. The registration of the business to the address of the Residence indicates to me that Mr Puentes-Reed fully intended to occupy that premises and was occupying that premises when he was arrested in June.

[48] I conclude on the evidence that the business registrations are evidence of intention to possess the Residence by Mr. Puentes-Reed. It is also evidence of a continuous and concerted possession of the Residence by Mr. Puentes-Reed as at the date he was arrested by the Thunder Bay police.

[49] As noted above, I believe the evidence of Mr. Puentes that he wanted Mr. Puentes-Reed to be physically present at the Residence when the expensive gear he ordered showed up on the door step. This aspect of the testimony of Mr. Puentes makes sense. The fact that during the period June 13, 2018 to June 15, 2018 Mr. Puentes was directing Amazon to deliver items to the Residence is consistent with control and possession Mr. Puentes-Reed was exercising over the Residence at the time the police arrested Mr. Puentes-Reed. Mr. Puentes-Reed could safely intoxicate himself to a point where he was “flat out” at noon because he knew the Residence was a safe house. He thought he could safely pass out there without fear of being interrupted by the police. Because it was a safe house.

[50] Mr. Puentes-Reed’s evidence that he was relying on others to notify him when his goods showed up at the Residence also makes no sense. He testified that he had only a passing connection with the tenant of the Residence. He had paid her what Mr. Puentes intimated was too much money to stay there in April 2018. And he had not told his father he had failed to find a new location. In my view, this is because Mr. Puentes-Reed has fabricated the entire story about staying elsewhere and trying to find a location other than the Residence to set up his hip-hop business.

[51] The Residence was where Mr. Puentes-Reed was staying and fully intended to stay when he was arrested in June. He did not have a transitory relationship with the premises. He exercised full control over all its contents with knowledge of what was going on at the location. It was a safe house containing illegal drugs, paraphernalia, illegal guns and ammunition and cash proceeds of crime.

[52] Mr. Puentes-Reed’s evidence seeking to distance himself from occupation of the Residence makes even less sense in light of the testimony about his visit to Thunder Bay starting on June 7, 2018. Mr. Puentes-Reed testified that from the time he landed in Thunder Bay to the time he was arrested, he was staying elsewhere in Thunder Bay. He testified he flew in late to Thunder Bay on June 7. He arrived at around midnight. He rented a car at the airport. Despite the late hour he was able to drive about 15 minutes to a local restaurant, Wacky’s. There he claims he met up with a male person he had previously met at that same location. That person just happened to offer Mr. Puentes-Reed a place to stay for an extended period of time. Although this person was extending what objectively seems like a significant offer of hospitality, Mr. Puentes-Reed could only remember his first name, “Jeff”. Mr. Puentes-Reed then stayed with Jeff for the next eight days. When he testified, Mr. Puentes-Reed could not remember the last name of a person he stayed with for eight days. Mr. Puentes-Reed said he was looking for other places to live at that time. He had only visited three and was unable to secure any to lease. In my view this was not much work for eight days.

[53] Mr. Puentes-Reed also explained that Jeff’s place was located in a less than desirable part of Thunder Bay. Mr. Puentes-Reed was still determined to stay there as he claims he had been charged an exorbitant rent for the prior occasion where he had in fact been staying in the Residence with his father. I note Mr. Puentes testified that the amount paid for rent on an earlier occasion had been “news to him”.

[54] Mr. Puentes-Reed had a flight leaving Thunder Bay on June 10, 2018. He was still in Thunder Bay five days later on June 15. He had not found alternative accommodations by that point. Yet, despite not being possessed of this mission critical location for his studio, he did not see it important to tell his father not to send the gear to the Residence. Mr. Puentes-Reed had to rely on his father to pay for his equipment. It seems to me he would only have him send it to a location where he would be sure he would receive it. The equipment was directed to the Residence by Mr. Puentes. This is because at the time Mr. Puentes-Reed was in possession of the Residence.

[55] This independent fact for me demonstrates the fabricated nature of Mr. Puentes-Reed’s explanation for his presence in the Residence. It is just one of many holes in Mr. Puentes-Reed’s story.

[56] I do not believe Mr. Puentes-Reed was staying anywhere other than at the Residence from June 7, 2017, until June 15, 2017.

[57] In argument Mr. Puentes-Reed puts much emphasis on the fact that he was “dead to the world” when the police arrived. As I understand this argument, Mr. Puentes-Reed could not have been aware of the state of the Residence due to his level of intoxication. That argument hinges on one critical fact. Mr. Puentes-Reed testified that he did not come voluntarily to the Residence. I do not accept this evidence or the argument that flows from it. I do not accept the evidence of Mr. Puentes-Reed being in a state that he had to be awakened by police as evidence that he was unaware of how he came to be in the Residence. I do not accept this as evidence he was unaware of what else was in the Residence. Rather I find it is consistent evidence that he was at all times in possession of the Residence, which was being used as a safe house for the drug trade, prior to June 15, 2018. I find it consistent that he had taken drugs or other forms of intoxicants and was completely confident that he could be passed out in a safe place away from any interference by police.

[58] I say this because I find Mr. Puentes-Reed’s explanation of how he got to the Residence is incredible. Mr. Puentes-Reed argues his explanation for how he ended up in the Residence raises a reasonable doubt as to his possession of the things found in the Residence. He says there is other evidence that indicates a reasonable conclusion that others were in possession of the Residence. I disagree.

[59] Mr. Puentes-Reed’s explanation for how he came to be arrested after being found passed out in the primary bedroom of the Residence was complex. In my view, the complexity of his story was not a badge of credibility. His story about the events of June 14 and 15, 2018 was not believable. For reasons I will now discuss I find Mr. Puentes-Reed’s explanation of how he came to be in the Residence to be completely incredible and not capable of belief.

[60] Mr. Puentes-Reed says he was placed in the Residence in a state of severe intoxication by a 17 year old, Mr. Chudier Reat. Mr. Reat too was “also charged with the incident before the court” but those charges were stayed in April 2019 according to the agreed statement of fact.

[61] Mr. Puentes-Reed explained Mr. Reat’s involvement as follows. When Mr. Puentes-Reed came to Thunder Bay on June 7, 2018, he began to party hard. Mr. Puentes-Reed testified he had a drug problem. He claims he was addicted to oxycodone. He claims he began taking oxycodone in about 2017. He needed pain relief as the result of a motorbike accident he had experienced in the Dominican Republic in March 2017. Mr. Puentes-Reed never sought medical help for his injuries. Rather he got “street advice” and began taking street opioid drugs to ease his pain.

[62] Mr. Puentes-Reed claims he did not reveal his drug problem to his father. Coincidentally, Mr. Puentes-Reed’s drug dealer from the Greater Toronto Area just happened to be Mr. Reat. Again, coincidentally, this youth just happened to be in Thunder Bay in June 2018. Mr. Puentes-Reed introduced evidence of a selfie video showing a young person, whom Mr. Puentes-Reed identified as “Bankz”, but it was agreed the person was Mr. Reat. Mr. Puentes-Reed argues the video shows Mr. Reat was at the Residence at some point. Mr. Reat is now dead. The providence of the video was not proven at this trial. I do not find the video is evidence of Mr. Reat’s occupation and control of the Residence such that it raises a reasonable doubt about Mr. Puentes-Reed’s possession of the illegal items found in the Residence. I find it does show Mr. Reat was there, at some point, playing around with a bunch of cash. It does not raise a reasonable doubt about Mr. Puentes-Reed’s occupation of the Residence and his possession of all the illegal items found there.

[63] Mr. Puentes-Reed says he was buying drugs from Mr. Reat while in Toronto. Also, he bought percocets from Mr. Reat in Thunder Bay the day before he was arrested. Mr Puentes-Reed testified he bought from him at the Residence. As a result of this purchase Mr. Puentes-Reed said he was in debt to Mr. Reat. In debt to the tune of $200. I do not believe Mr Puentes-Reed owed a drug debt to Mr. Reat.

[64] On the night before the arrest Mr. Puentes-Reed said he again had reached out to Mr. Reat to buy more drugs. At the time Mr. Puentes-Reed was at Jeff’s apartment. Mr. Reat allegedly did not come through in time. Mr. Puentes-Reed decided to buy from Jeff. According to Mr. Puentes-Reed he took these drugs which were provided by Jeff. They did not affect him as he expected. He passed out. This was bad. Mr. Puentes-Reed remembers Mr. Reat waking him up. Mr. Puentes-Reed did not explain how Mr. Reat knew to come to his assistance. Mr. Puentes-Reed remembers Mr. Reat taking him to a car but he does not remember what car. Mr. Puentes-Reed says he passed out in the car.

[65] The car Mr. Puentes-Reed rented was found in a car port in the Residence when Mr. Puentes-Reed was arrested June 15, 2018. There was $280 loose cash located in the centre console of this car on June 15, 2018. Mr. Puentes-Reed admits to being in possession of this cash. It was more than enough to settle a $200 drug debt. On this basis I do not believe Mr. Puentes-Reed’s testimony that he owed a drug debt to Mr. Reat.

[66] The next thing Mr. Puentes-Reed remembers was waking up in a bed with Mr. Yousuf. This was not good. It was “pitch black” according to Mr. Puentes-Reed. It being four days before the summer solstice in Thunder Bay “pitch black” is achieved usually anytime after 11:30 p.m. to midnight. In any event, Mr. Puentes-Reed says he recognized the room as being one in the Residence. He says Mr. Yousuf pushed him off the bed. So Mr Puentes-Reed moved. He went to the primary bedroom because he had slept there when he had visited previously with his father.

[67] A floor plan of the third floor of the Residence where Mr. Puentes-Reed was found was in evidence before the Court. Mr. Puentes-Reed was allegedly placed not in the first bedroom that one would encounter when coming up the stairs but in the second one. Where he ended up was furthest from the stairs coming up from the other two floors.

[68] Next thing Mr. Puentes-Reed remembers is waking up with the police screaming at him.

[69] The only part of Mr. Puentes-Reed’s evidence about how he got to the Residence that I believe is his evidence about taking drugs at some point before he was arrested. I also believe that his taking drugs led him to be “passed out” when arrested by police. I do not believe anything else of Mr. Puentes-Reed’s evidence about the events he says happened immediately prior to Mr. Puentes-Reed being arrested.

[70] Mr Reat is alleged to have placed Mr. Puentes-Reed on the third floor of a place, where if he walked down the hall, like he said he did, he would find approximately $450,000 in cash in a closet. Also, notwithstanding being in a state of extreme intoxication, Mr. Puentes-Reed’s passport managed to make it to a dresser drawer in the same room where Mr. Puentes-Reed was passed out. Not only that, hung up in the closet was a blue hoodie containing Mr. Puentes’ CIBC debit card. As well, there was a black Adidas sweater in the closet which contained an AMEX card in Mr. Puentes-Reed’s name. Two pieces of clothing containing objects linked directly to Mr. Puentes-Reed were hanging neatly in a closet. Not in a bag, like his father said was the normal case when Mr. Puentes-Reed was travelling.

[71] Also, in the drawer containing Mr. Puentes-Reed’s passport, was $1,190 in cash. More than enough to pay off a $200 alleged drug debt. I find the fact that there was an Afro pic in that same drawer is not a fact that would lead to reasonable doubt about Mr. Puentes-Reed’s possession of the primary bedroom and indeed the entire house. The comb probably belonged to someone else, maybe Mr. Reat. Nevertheless, this item is not sufficient to overbear all the other evidence that points right at Mr. Puentes-Reed’s possession of the primary bedroom and the Residence.

[72] There was other evidence of the personal possessions of others found in the Residence. The landlord had leased the property to Kiana Adams. A warrant remains outstanding for the arrest of Ms. Adams. Kiana Adams is not on trial here. However, I am not left in a reasonable doubt concerning Mr. Puentes-Reed or Mr. Yousuf by the fact she was the person who executed the lease and was apparently texting with the landlord on June 15, 2018.

[73] A suitcase with an ID attached belonging to Zakaria Nahi was found in a bedroom on the third floor at the top of the stairs. There was an airline boarding pass located in Mr. Nahi’s name as well.

[74] A Lakehead University student ID tag for a Joseph Rule was located in the Residence.

[75] A passport of Anthony Nunez Burbano was found in a kitchen drawer on the third floor.

[76] None of these people were found in the Residence. In my view this evidence does not raise a reasonable doubt concerning the possession of the illegal items found in the Residence by Mr. Puentes-Reed as well as Mr. Yousuf. This evidence is consistent with a conclusion that these people too were present at some point in the Residence. However, the marginal degree of actual possession or occupation of the premises possibly demonstrated by these items was not in my view sufficiently of a nature that served to exclude Mr. Puentes-Reed’s nor Mr. Yousuf’s obvious degree of control and knowledge of the illegal items present in the Residence. It also does not raise a logical or reasonable conclusion that all the indicia of possession of the Residence of Mr. Puentes-Reed is overborne by this evidence such that I would have a reasonable doubt as to Mr. Puentes-Reed’s possession and knowledge of the illegal items found in the Residence.

[77] The large amount of cash found in a closet where Mr. Puentes-Reed was found sleeping indicates to me Mr. Puentes-Reed alone was in possession of these proceeds of crime. His personal possessions like his clothes in the proximity of these items eliminates any doubt that Mr. Puentes-Reed was in possession of the primary bedroom and all other areas of the Residence.

[78] Counsel argues that the fact he was found passed out sleeping on top of bed covers with his shoes on is evidence of a transitory possession of the Residence and lack of knowledge of what was there. I disagree. I see it as evidence of a drug dealer who was so confident in the security of the safe house he was occupying, that he could become so high that it did not matter how he crashed on his bed, in his room, not worried about all the items of the drug trade he knew were in the Residence.

[79] I find Mr. Puentes-Reed had knowledge of the character of the drugs, paraphernalia, guns, ammunition and money found in the Residence. He knowingly kept those objects in the Residence as he was there in possession of the space using it as a safe house for a drug operation. I also find he intended to have use of the various items for his involvement in the drug trade and to protect the cash that was sitting in the closet of the room that he was occupying. I say this because I reject his explanation for how he came to be found by police. I then have the evidence of his being in a place where he could not physically get to unless he passed from the ground floor up two flights of stairs to be in a third floor bedroom. In the course of making his way up there he would have passed the drugs, guns and cash bundled in a manner consistent with the drug trade on the second floor. The only logical conclusion that one can draw from this evidence is that Mr. Puentes-Reed knew about these items, they were there for his use and he was in possession of them.

[80] In my view, Mr. Puentes-Reed’s career and career aspirations do not exclude or raise any reasonable doubts about his being in possession of the Residence and having knowledge of all the illegal things in the Residence when he was arrested. In fact, the other documentary evidence found in the Residence, like the business registrations for BFG and parking tickets for Mr. Puentes-Reed from Calgary from 2017 provide evidence of an occupation of the Residence that was not consistent with how Mr. Puentes-Reed explained his presence there.

The Evidence Against Mr. Yousuf

[81] Mr. Yousuf was found passed out in a bedroom in the Residence by police at about noon on June 15, 2018. An Ontario driving licence and Ontario health card bearing Mr. Yousuf’s name were admitted into evidence in this trial. The address on the driver’s licence for Mr. Yousuf was in Mississauga. I find Mr. Yousuf was not ordinarily resident in Thunder Bay on June 15, 2018.

[82] Mr. Yousuf’s state of intoxication such that he had to be awakened from his sleep is consistent with his treatment of the Residence as a “safe house”. Mr. Yousuf could not have made it to the third floor bedroom where he was found without passing through the second floor of the Residence. On this second floor in plain view were drugs, guns and bundled cash. In my view Mr. Yousuf’s proximity to these items having to pass them on the way up the stairs contributes to my finding that he had those items together with Mr. Puentes-Reed in their constructive possession or custody. Further the fact that he was one of two people found in the Residence leads to the only logical conclusion he was in occupation of the Residence for the use or benefit of himself and of Mr. Puentes-Reed. I find given the nature of the items, obviously connected to the drug trade Mr. Yousuf had constructive possession of these items. He had knowledge of the character of the objects. He knowingly put or kept the objects in the Residence. Further he intended that the objects in the Residence were for his use or benefit and that of Mr. Puentes-Reed.

[83] As noted above the personal identification of others found in the Residence did not raise a reasonable doubt that Mr. Yousuf was in possession of all the illegal items found in the Residence.

[84] Mr. Puentes-Reed’s testimony suggests that both accused were brought to the Residence by Mr. Reat only a few hours before their arrest. Mr. Puentes-Reed’s testimony suggests that both accused were escorted to the third floor of the Residence in an intoxicated stupor. I am effectively asked to accept that Mr. Puentes-Reed stumbled into a bedroom containing the proceeds of crime – in the order of $450,000 – entirely by inadvertence. I cannot accept these aspects of Mr. Puentes-Reed’s testimony.

[85] However, the onus remains on the Crown to prove, beyond a reasonable doubt, that both accused were in possession of the items for which they were charged. I find the Crown has satisfied that heavy burden.

The Weapons

[86] I find that Mr. Puentes-Reed and Mr. Yousuf were in constructive possession of the prohibited Diamond Back handgun, the prohibited Browning 1935 handgun and the prohibited FN Browning 1900 handgun. These items were located in plain view on the glass coffee table in the living room.

[87] I find that Mr. Puentes-Reed and Mr. Yousuf were in constructive possession of the Glock handgun. This item was located in plain view on the kitchen counter.

[88] I find that Mr. Puentes-Reed and Mr. Yousuf were in constructive possession of the firearm magazine of the Glock handgun. This item was located in plain view on the glass coffee table in the living room.

[89] The Residence was a safe house in a lucrative drug operation. Mr. Puentes-Reed and Mr. Yousuf were involved in operating this business. I say this in part because they were found there. They were not tenants. They had not paid anybody to stay there. There is no evidence that I accept that they had any permission to be there. It is also consistent with the expert evidence of Detective Constable Vander-Vegt that a lot of the safe house/trap house operations running in Thunder Bay during the time relevant to this case, were being operated by persons who were not residents of Thunder Bay. Mr. Puentes-Reed and Mr. Yousuf were not ordinarily resident in Thunder Bay in 2018. This leads me to conclude they were involved in the obvious drug operation being run out of the Residence. The weapons provided a means for the occupants of the Residence to protect themselves and the operation. Both accused had knowledge of the weapons, which were in plain view. Both accused had control of the weapons, which could readily be retrieved. The Browning 1935 High Power was loaded, at the ready and capable of being fired. I find that the conspicuous location of these weapons represented implicit consent that either accused could use them if the need arose.

The Proceeds of Crime

[90] I find that Mr. Puentes-Reed and Mr. Yousuf were in constructive possession of the proceeds of crime in excess of $5,000.

[91] In the statement of admissions, the defence concedes that the majority of the cash seized by police represents the proceeds of crime. I find it highly unlikely that two accused who had no connection with this drug operation would be invited – let alone escorted – into a home where hundreds of thousands of dollars was stored in plain sight.

[92] I find it highly unlikely that the same accused would be left in such a home alone unless he was a participant in the drug trade.

[93] The accused had knowledge and control over this money. Much of it could be discovered with a passing glance. The accused, who I find were both involved in operating this business, had at least some role in managing the enormous cash flow of the operation.

[94] The cumulative effect of the evidence presented by the Crown makes clear that Mr. Puentes-Reed and Mr. Yousuf were not at the Residence by unfortunate coincidence. I am satisfied that both had a role in operating this business. I do not accept Mr. Puentes-Reed’s evidence to the contrary, nor am I left in reasonable doubt by his evidence.

[95] Mr. Yousuf was found passed out in a bedroom in the Residence by police at about noon on June 15, 2018. An Ontario driving license and Ontario health card bearing Mr. Yousuf’s name were admitted into evidence in this trial. The address on the driver’s license for Mr. Yousuf was in Mississauga.

[96] Counsel for Mr. Yousuf argues that mere proximity to illegal items is not sufficient to establish possession. In my view the nature of the illegal items found and the state to which Mr. Yousuf was found indicates he had more than a proximate degree of control over the Residence.

[97] For these reasons I find Adrian Puentes-Reed and Kalid Yousuf guilty of all charges before the Court.

[98] To summarize. For the reason above I find:

Adrian Myles Puentes-Reed and Kalid Yousuf;

• On count 1, guilty of possession of proceeds of crime in excess of five thousand dollars;
• On count 2, guilty of possession of cocaine for the purposes of trafficking;
• On count 3, guilty of possession of marihuana for the purposes of trafficking;
• On count 6, guilty of possession of a restricted Glock 17 handgun with readily accessible ammunition capable of being discharged in said firearm;
• On count 12, guilty of possession of a Browning 1935 handgun without being a holder of a licence for it;
• On count 13, guilty of possession of a prohibited Diamond Back handgun without being a holder of a licence for it;
• On count 14, guilty of possession of a prohibited FN Browning 1900 handgun without being a holder of a licence for it
• On count 17, guilty of possession of a prohibited device (a firearm magazine) without being a holder of a licence for it.

[99] At the request of the Crown counts 4, 5, 7, 8, 9, 10, 11, 15, 16 and 18 of the indictment before the Court are hereby stayed.

[100] May I hear from counsel as to a date for sentencing?

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick Released: February 24, 2023