COURT FILE NO.: CR-22-00000016-0000
DATE: 20230905
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
KIMYHEL TEWOLDE
Somboun Tsai and Sarah Malik, for the Crown
Christian Pearce, for Mr. Tewolde
HEARD: June 20, 21, 22, 23, 26, 27, 28 & 29, 2023
M.D. Forestell J.:
Reasons for judgment
I overview
[1] Kimyhel Tewolde is charged on a seven-count indictment. All of the charges relate to his alleged participation in the sale of firearms to an undercover officer on three occasions in 2020. For each of the three transactions, Mr. Tewolde is charged with possessing and transferring the firearm. He is also charged with possessing proceeds from the sale of the firearms.
[2] It is not disputed that the undercover officer purchased firearms from Matthew Abramczyk on August 13, October 7, and October 20, 2020. The transactions all occurred near the residence of Mr. Abramczyk. The undercover officer engaged in many illegal transactions with Mr. Abramczyk over the course of several months as part of a larger investigation. These transactions involved drugs and firearms supplied by Mr. Abramczyk to the undercover officer. The undercover officer tried to determine from Mr. Abramczyk the identity of the supplier of the firearms.
[3] Police intercepted communications in relation to the transactions and the parties believed to be involved.
[4] A man who resembles Mr. Tewolde was observed and photographed in the vicinity of Mr. Abramczyk’s residence around the time of each transaction. Mr. Abramczyk was observed to be with that person before and after the August 13th transaction, before the October 7th transaction and before the October 20th transaction.
[5] There were multiple contacts between Mr. Tewolde’s known telephone number and Mr. Abramczyk’s known telephone number during the relevant time period.
[6] Just before the October 7, 2020 transaction, Mr. Abramczyk told the officer by telephone that he was running late and that the officer would have to speak to his associate. The officer then received a call from a man who identified himself as ‘Michael’ and as a friend of Mr. Abramczyk. The call came from a phone number that was not being intercepted by the police at the time. It was not a phone number that was known to be associated with either Mr. Abramczyk or Mr. Tewolde. The officer negotiated the purchase of a firearm from the man. Michael said that he had to complete the deal right away because he was on a curfew and had an ankle monitor, having been recently released from jail. Michael said that he was driving a grey Hyundai.
[7] Although the officer saw a grey Hyundai in the area where the transaction was to occur, it was Mr. Abramczyk who met with him and sold him the firearm. The officer asked about the supplier. Mr. Abramczyk identified him to the officer as ‘Dubbs’. He told the officer that Dubbs had just gotten out of jail, had an ankle bracelet and was on a curfew. On October 7, 2020, Mr. Abramczyk said that Dubbs had 15 minutes to get home because of his curfew. This was sometime between 9:33 and 9:46 p.m. When asked, Mr. Abramczyk said that Dubbs and Michael were the same person.
[8] Mr. Tewolde, at the time of the transactions, was on parole having recently been released from jail. He had an ankle monitor. He had a curfew of 10:00 p.m.
[9] On October 20, 2020, Mr. Abramczyk delivered an assault rifle to the undercover officer, transporting it in a guitar case. A man who resembled Mr. Tewolde picked up Mr. Abramczyk that day. Mr. Abramczyk put the guitar case in the back seat of the car and the man drove Mr. Abramczyk to an area near the meeting with the undercover officer.
[10] There is evidence that Mr. Tewolde had used the name Michael in two telephone calls with an unknown woman around the time of the transactions.
II issues
[11] The issue that I must determine is whether the Crown has proved beyond a reasonable doubt that Mr. Tewolde supplied the firearms to Mr. Abramczyk to sell to the undercover officer or that he otherwise knowingly aided in the transfer of the firearms on any of the three occasions that firearms were transferred. In order to find that Mr. Tewolde is guilty of any or all charges I must be satisfied that he was the person observed in the vicinity of the transactions by the surveillance officers, and that he supplied the firearms to Mr. Abramczyk or that he knowingly assisted Mr. Abramczyk in some other way to possess and transfer the firearms.
[12] In these reasons I will begin by reviewing the evidence in more detail; I will then address the legal issues relating to the admissibility of evidence; and finally, I will set out my factual findings and conclusions based on the admissible evidence.
III detailed review of the evidence
Background
[13] As part of a project, the undercover officer made contact at the end of January 2020 with a person who was involved in criminal activities in the Greater Toronto Area. During his meetings with this person, the undercover officer was introduced to other individuals who were involved in drug and firearms trafficking. In May of 2020 the undercover officer was introduced to a man known as ‘Ammo’. Ammo was Ibrahim Ahmed. Mr. Ahmed introduced the officer to a person known as ‘Max’. Max was Matthew Abramczyk. The officer began dealing with Max on July 21, 2020. Before August 13, 2020, the undercover officer had had at least three face to face meetings with Max. These meetings were for the purpose of purchasing drugs and firearms.
August 13th 2020 Transaction
[14] The first transaction in issue in this trial occurred on August 13, 2020. Prior to the August 13, 2020 firearms purchase, the undercover officer was in contact with Mr. Abramczyk by text message. Just after midnight on the 13th of August, the officer and Mr. Abramczyk discussed the firearm purchase and the purchase of drugs. At 2:22 p.m. on August 13th, the officer contacted Mr. Abramczyk to reestablish contact and to make arrangements for the transactions. They agreed that the officer would purchase a Smith and Wesson Taurus G2S .40 calibre handgun and ammunition from Mr. Abramczyk for $6,000.00. They arranged to meet near Mr. Abramczyk’s residence which was 1307 Wilson Avenue in Toronto.
[15] At 7:22 p.m. on August 13th 2020, the officer arrived in the area and texted Mr. Abramczyk to tell him that he had arrived. The officer saw Mr. Abramczyk leave the front door of 1307 Wilson Avenue. Mr. Abramczyk walked past the officer’s car several times, looking around the parking lot and talking on his phone. Eventually he entered the officer’s car. He told the officer that one of his guys saw ‘Jake’ which is slang for police.
[16] After entering the car, Mr. Abramczyk lifted his shirt and removed a handgun from a holster that he was wearing under his shirt. The officer recognized the holster as one that Mr. Abramczyk had worn at a previous meeting. Mr. Abramczyk showed the officer the gun. He told the officer that the bullets he was selling him could do a lot of damage. The officer asked about buying more ammunition and Mr. Abramczyk told him that he had someone who could sell more ammunition. The officer gave Mr. Abramczyk $6,000.00 in a brown Tim Hortons bag. The bag was about 6 to 12 inches long.
[17] Mr. Abramczyk entered the car about 30 minutes after the officer arrived at 7:22 p.m. The transaction took about 5 to10 minutes.
[18] There was surveillance around the area of 1307 Wilson Avenue on August 13, 2020. Officer Kim observed Mr. Abramczyk at 7:11 p.m. entering 1307 Wilson Avenue with two other men. One of those men was tall and skinny. He was described by officers Kim and Wong as being about 6’3” tall, brown-skinned with a skinny build and an Afro hairstyle. The Crown alleges that this was Kimyhel Tewolde. Officer Kim saw the same tall, skinny man in the parking lot at 8:04 p.m. Officer Wong saw the man approach a BMW and speak to the driver. He then went to a white Elantra and then back to the BMW. Officer Wong took a photograph of the driver of the BMW and the tall skinny man smoking outside the BMW.
[19] Officer Kim observed Mr. Abramczyk to be in the car with the undercover officer at 8:16 p.m. At 8:21 p.m. Officer Kim saw the tall skinny man shake hands with the driver of the BMW and walk to the door of 1307 Wilson Avenue. The BMW left the parking lot. At 8:25 p.m., Mr. Abramczyk and the tall skinny man were seen by officer Kim to be together. Mr. Abramczyk had what Officer Kim described as an envelope in his hand. He handed the envelope to the tall skinny man.
[20] The tall skinny man left the parking lot of 1307 Wilson Avenue driving the white Elantra at 9:31 p.m. It was followed to 3 Clevedon Street where it was parked on the street.
[21] Mr. Tewolde lived at 175 Epsom Downs Drive which was a short distance from 3 Clevedon Street. On August 18, 2020, Officer Lacroix photographed the driver of the same car. The driver was seen that day with Mr. Abramczyk.
October 7, 2020 Transaction
[22] On October 4, 2020, the undercover officer received a text message from Mr. Abramczyk asking the officer when he was planning on purchasing more drugs. The officer and Mr. Abramczyk continued to communicate about the purchase of firearms and drugs. On October 6, 2020, at 4:09 p.m., the conversation about the purchases continued and Mr. Abramczyk sent the officer a photograph of a black handgun with a round of ammunition in the magazine. The officer asked the price of the gun. Mr. Abramczyk responded that there were two guns for sale. Mr. Abramczyk texted that one of the guns was a .45 calibre Subcontract and the other gun was a 9 mm. Mr. Abramczyk asked for $15,000.00 for the two guns. They negotiated and ultimately agreed on $13,000.00 for the two guns.
[23] At 1:39 p.m. on October 7, 2020, the undercover officer texted Mr. Abramczyk and asked if they were still going to meet for the transaction. Mr. Abramczyk agreed to meet the officer at 7:30 p.m. that day. At 4:46 p.m., Mr. Abramczyk texted the officer to tell him that he could meet earlier. At 5:19 p.m., Mr. Abramczyk texted the officer to tell him that the second gun was not coming. Mr. Abramczyk texted the officer and said that the supplier would have two .45 calibre firearms for sale for $15,000.00. The officer and Mr. Abramczyk negotiated and agreed on the price of $14,000 for the two firearms.
[24] They continued to communicate, and Mr. Abramczyk told the officer that he was going to be late for the meeting. At 8:41 p.m., Mr. Abramczyk told the officer to speak to ‘his boy’. One minute later the officer received a call from a cell phone with the number 647-518-7569. At this point in the investigation, an authorization had been granted and police were intercepting communications on the numbers associated with Mr. Abramczyk and Mr. Tewolde and others. The number that called the officer on October 7, 2020 was not known to the police and it was not, at that time, the subject of an authorization to intercept communications.
[25] The officer spoke to the caller. He described the man’s voice as sounding young. He could hear someone else talking in the background. The caller apologized for the miscommunication with Mr. Abramczyk. The caller said that he was supposed to get two designer firearms from his supplier but for some reason his supplier backed out of the deal. He offered to sell the undercover officer one .45 calibre with a full clip for $7,500.00. The officer asked the caller for his name and the man said that his name was Michael and he was Max’s friend. The officer negotiated with Michael and offered $6,000.00. Michael said that he had paid $6,700 or $6,800 for the gun and needed to make $500 from the deal. The officer agreed to pay $7,000.00 for the gun with ammunition.
[26] The undercover officer and Michael continued to talk about future deals. The officer asked about previous discussions that he had with Mr. Abramczyk to buy five firearms. Michael said that he might not be able to sell five on the next deal because his supplier needs more time to put the order together. He said that he might be able to sell three firearms on the next deal.
[27] Michael said that he needed to do the deal right away because he was on a curfew. He said that he could have Mr. Abramczyk pick up the firearm from him instead of meeting with the officer himself. The officer asked Michael to meet him in 15 to 20 minutes near the ‘Max spot’ which meant near Mr. Abramczyk’s residence. Michael agreed to do so. The officer asked him what he was driving, and Michael said that he was driving a grey Hyundai. Michael also said that he knew the officer and had seen him before.
[28] At 9:13 p.m. the officer arrived in the area of 1307 Wilson Avenue. At 9:25 p.m., the undercover officer saw a grey Hyundai with the last digits of the licence plate being 262 drive into the parking lot of the apartment building.
[29] At 9:24 p.m., surveillance officers saw a grey Hyundai Sonata, licence plate CKWL262, arrive in the parking lot of 1309 Wilson Avenue. The front passenger exited the vehicle and entered 1309 Wilson Avenue. Officer Williston, who made the observations at this point, was able to briefly see the driver of the car who he described as a male black with light skin and short Afro hair style. He noted that the driver could possibly be Ibrahim Ahmed.
[30] At 9:25 p.m., the Sonata was in a parking spot and Mr. Abramzcyk entered the car. Mr. Abramczyk left the Sonata about five minutes later and then walked over to the car of the undercover officer.
[31] At 9:33 p.m., Mr. Abramczyk approached and entered the vehicle of the undercover officer. Mr. Abramczyk gave the officer a black cloth bag that contained a black Hi-Point JMP .45 calibre handgun, a magazine and ammunition.
[32] The officer and Mr. Abramczyk discussed another firearm that Mr. Abramczyk had offered to sell. Mr. Abramczyk told the officer that ‘his guy’ had it and that his guy had 15 minutes to make it home because he was on a curfew. The officer asked about an AK47 that Mr. Abramczyk had offered to sell. Mr. Abramczyk said that he was waiting for the supplier to send a video. Mr. Abramczyk continued to tell the officer that his guy had 15 minutes to make it home. The officer testified that Mr. Abramczyk was urging him to hurry because the other man was waiting and only had 15 minutes. Mr. Abramczyk told the officer that the man had just got out of jail and had an ankle bracelet. The officer asked about the man and Mr. Abramczyk told him that his name was ‘Dubbs’ and that he was one of Mr. Abramczyk’s original “crodie” – meaning close friend. The officer asked if Dubbs was Michael and Mr. Abramczyk said that he was. Mr. Abramczyk and the officer then talked about the drugs that the officer had ordered. The officer paid for the gun and Mr. Abramczyk left the vehicle. This conversation took about 13 minutes.
[33] Shortly after this firearms transaction, Mr. Abramczyk returned to the vehicle and sold fentanyl to the officer.
[34] Surveillance officers saw the grey Sonata leave the parking lot of 1307 Wilson at 9:34 p.m. The Sonata was seen to park outside an address a short distance from the residence of Mr. Tewolde.
[35] On October 8, 2020, the officer received a text message from the same number from which Michael had called him the day before. The text read “yo brother call me when you get a chance”. The officer responded asking who it was. The person texted ‘I talked to you yesterday. You pulled up in a GTI.’ The officer called the number and the male who answered confirmed that he was Dubbs and that he was the same person that the officer spoke to the day before. The man had a young voice. Dubbs said that he wanted to show the officer something. That he was doing a favour for a friend. His friend was selling a rare firearm. He said his friend wanted $6,000.00 for it. Dubbs said that there was something wrong with the mechanism that holds the spinner, but it was an easy fix. The officer asked if it was a .38 and Dubbs said that it was similar to a Desert Eagle and was a .44 caliber gun. The officer could hear Dubbs asking someone in the background about the gun. The officer said that he did not know how to fix guns. Dubbs asked if the officer knew anyone who could fix it or anyone who would be interested in buying it. Dubbs spoke of calling his friend who the officer took to be the owner of the gun.
[36] The officer then asked Dubbs about the status of the order that they had discussed the night before when they talked about the officer purchasing three more firearms. Dubbs said that he was waiting for his friends. The officer asked to get a heads-up so that he could have the money ready for him. Dubbs confirmed that he could get the guns. The officer asked if he could get sticks, meaning rifles. Dubbs said that he could get them. Dubbs said that he knew that the officer wanted a few handguns. The officer said that it was half a crate that he had been negotiating to purchase through Mr. Abramcyzk. Dubbs said that it would be better to talk in person.
[37] The subscriber information for the telephone number for the person identified as ‘Michael’ identified ‘Dillion Brown’ as the subscriber. There was contact between that number and the number associated with Mr. Abramczyk from August of 2020 through November of 2020. Police investigated Dillion Brown and found that there was a person named Dillon Brown whose information was consistent with the subscriber information. That person had a criminal record, and the police information had a description and photograph of Dillon Brown.
[38] Detective Woodland reviewed video footage from 1309 Wilson Avenue from the evening of October 7, 2020. One of the men from the grey Hyundai had entered 1309 Wilson before the firearms transaction. Detective Woodland observed a person on the video footage from 1309 Wilson who generally matched the description of Dillon Brown, but she could not confirm his identity because he wore a face mask. The man appeared to be carrying a bag on his back and hip.
October 20, 2020 transaction
[39] The next firearm transaction that is the subject of these proceedings occurred on October 20, 2020.
[40] The undercover officer began communicating with Mr. Abramczyk on October 15, 2020 about another purchase. Mr. Abramczyk sent the officer a text message just after 11:00 p.m. on the 15th asking if the officer was interested in purchasing a firearm. He wrote that one of his suppliers had just come back from Ottawa and was selling an AR assault rifle. The communications continued on the 16th. Mr. Abramczyk sent the officer two videos of an individual showing a firearm and a photo of a SCAR rifle that Mr. Abramczyk referred to as an AR SCAR and offered to sell to the officer. On October 17th, Abramczyk offered to sell the officer a crate of firearms and asked if the officer wanted a ‘half thing’ crate or a ‘big thing’ crate, referring to handguns and rifles. On the 18th there was further discussion of sales of firearms and drugs. Mr. Abramczyk offered to sell the officer a black M16 and other guns.
[41] On October 18th at 7:22 p.m., Mr. Abramczyk told the officer that he was going to meet his supplier and would advise when they could do the transaction. At 10:39 p.m., Mr. Abramczyk told the officer that he had the guns and that they could complete the deal around 6:00 or 7:00 p.m. on the 19th. Mr. Abramczyk advised that the M16 was no longer available, but the deal was for two firearms, including the SCAR rifle. On the 19th, just after midnight, Mr. Abramczyk sent the officer a photo of a black rifle that he described as an AK. The officer agreed to meet with Mr. Abramczyk on the 20th of October to purchase an AK47 and an AR SCAR. The arrangement was that they would meet, and the officer would purchase the AK for $12,500.00 and they would meet again for the officer to purchase the second firearm, the AR SCAR, for $7,000.00.
[42] Later, on the 19th, Mr. Abramczyk sent the officer a photo of a rifle beside a guitar case with two magazines. At around 8:00 a.m. on the 20th, Mr. Abramczyk sent photos of two rifles. They agreed to meet at noon on the 20th. At 11:41 a.m., the officer told Mr. Abramczyk that he would be late.
[43] At 11:48 a.m., surveillance officers observed a black Hyundai sedan in the parking lot of 1307 Wilson Avenue. Mr. Abramczyk was observed to approach the black Hyundai and then to approach a white Hyundai SUV with licence plate number CPNE350. The driver of the white SUV was seen to twice approach the black sedan and to return to the SUV between 11:57 a.m. and 12:04 p.m.
[44] Mr. Abramczyk is seen to approach both vehicles again at 12:05 p.m. while carrying a bag. He is then seen to approach the black vehicle and to return to 1307 Wilson Avenue at 12:21 p.m. At 12:40 p.m., Mr. Abramczyk returned to the vehicles. At 12:46 p.m., both vehicles were observed leaving the parking lot. The white SUV went to the back of 1307 Wilson Avenue. Mr. Abramczyk was observed loading a guitar case into the rear seat of the SUV.
[45] At 1:00 p.m., Mr. Abramczyk texted the officer to ask where he was and when they would meet. The agreed location was 1307 Wilson Avenue.
[46] The white SUV returned to the parking lot at 1:15 p.m. The black Hyundai sedan had also returned to the lot. The driver of the black car was identified by one officer as Ibrahim Ahmed.
[47] The officer arrived near 1307 Wilson Avenue at 1:21 p.m. He parked on a nearby street. Mr. Abramczyk left the white SUV with the guitar case at 1:23 p.m.
[48] Mr. Abramczyk approached the car of the undercover officer carrying a black guitar case. He asked the officer to pop the trunk. The officer told him to put the case in the backseat and Mr. Abramczyk did so. The officer inspected the firearm that was in the case and then placed the case containing the firearm in the trunk. Mr. Abramczyk then entered the passenger seat.
[49] The officer gave Mr. Abramczyk $12,500.00 for the firearm. Mr. Abramczyk and the officer had a conversation about the purchase of the second firearm. Mr. Abramczyk said that he would be leaving the area ‘with his guy’ to get the second firearm. There was further discussion by text message that day because Mr. Abramczyk reported that he was unable to get the second firearm. The officer and Mr. Abramczyk had a disagreement because the officer told Mr. Abramczyk that he had overpaid for the first firearm because he expected to get the second one.
[50] The white SUV left the parking lot of 1307 Wilson Avenue at 1:40 p.m. but they could not locate it. Police next saw it at 7:33 p.m. in the parking lot of 1307 Wilson Avenue. They saw it again at 8:35 p.m., dropping off take-out food to Mr. Abramczyk.
Evidence Relating to Other Dates, Transactions and Suspects
[51] After the October 20th transaction, Mr. Abramczyk told the undercover officer that his supplier was man called ‘P’. He provided a phone number for P. He told the undercover officer that the deposit that the officer had paid for second firearm on October 20th was given to P.
[52] Subsequent investigation revealed that the phone number was one number off from a number that had been in contact with Mr. Abramczyk. The subscriber information connected this number to a man called Piara Bahra.
[53] When the undercover officer questioned Mr. Abramczyk about ‘P’, Mr. Abramczyk said that P had been arrested in a police raid and the firearm that he was to sell to the undercover officer had been seized. The police determined that this was not true. Mr. Bhara was not involved in firearms trafficking and knew nothing about a deposit from Mr. Abramczyk. He had not been arrested in a police raid in which firearms were seized.
[54] On another occasion, Mr. Abramczyk told the undercover officer that he had a three-hour conversation with his supplier. The police were monitoring the phone and there was no such conversation.
Other Contact between Mr. Tewolde and Mr. Abramczyk
[55] There was documented contact between Mr. Abramczyk and the man matching the description of Mr. Tewolde on days that there were no firearms transactions. On August 18th and 19th, the Hyundai Elantra with license number CKTZ630 was observed at 1307 Wilson Avenue. On the 18th, Mr. Abramczyk exited the vehicle which was being driven by a black man with an Afro hairstyle. On the 19th, the same car was seen to go to the back of 1307 Wilson Avenue. It was being driven by a man with puffy black hair.
[56] The known telephone number of Mr. Tewolde had multiple contacts with the known telephone number of Mr. Abramcyzk. The phone associated with Michael also connected multiple times with the phone of Mr. Abramczyk.
[57] Tracking data shows calls from three different third parties to the known phone of Mr. Tewolde and to the phone used by Michael. One of those three parties made calls to the known phones of Mr. Abramczyk, Mr. Tewolde and the phone associated with Michael.
Other Evidence Relating to the identity of ‘Michael’ or Dubbs”
[58] In a November 15, 2020 intercepted telephone call to the phone registered to Mr. Tewolde, a female voice is heard to say that that she had answered his ‘secret phone’ which he had left at home. She said that the person calling had asked for ‘Uptee’ and that she had said nothing. Mr. Tewolde’s only response to the person (who was likely his sister) was to tell her that he would have to talk to her later.
[59] The phone number used by the caller ‘Michael’ was the subject of a valid authorization to intercept communications obtained after the October 8, 2020 call. The intercepted communications for that phone number included messages left for ‘Uptee’.
[60] In two intercepted calls on the known telephone of Mr. Tewolde, Mr. Tewolde identified himself using the name ‘Michael’ to an unknown female person.
Searches and Arrests
[61] On January 12, 2021, search warrants were executed at the residences of Matthew Abramczyk, Ibrahim Ahmed and Kimyheld Tewolde. The only thing seized from the residence of Mr. Tewolde was what appeared to be a debt list. The list was not consistent with firearms sales but with low level drug dealing.
[62] At the residence of Mr. Abramczyk police seized firearms, ammunition, cash and drugs. In the residence of Mr. Ahmed, the police seized a loaded Glock handgun and approximately $100,000 in cash.
Other Criminal Conduct by Mr. Abramczyk
[63] Mr. Abramczyk sold cocaine and Fentanyl in large quantities. He was also observed, on August 20th 2020, to be doing hand to hand drug deals.
IV admissibility of evidence
[64] Four issues relating to the admissibility of evidence must be determined before I move to the weighing of the admissible evidence and the determination of Mr. Tewolde’s guilt or innocence:
Whether similar fact evidence is admissible between counts.
Whether Mr. Tewolde should be found to have adopted the utterances of his sister on November 25, 2020 that (i) he had a secret phone; and (ii) he is known as Uptee.
Whether the utterances of the caller identified as ‘Michael’ in negotiating firearms sales are admissible as admissions of the accused.
Whether the utterances of Mr. Abramczyk on October 7, 2020, describing Michael or Dubbs as his supplier and stating that Michael/Dubbs was just out of jail, had a curfew and an ankle monitor and had to be home in 15 minutes are admissible for their truth under the co-actor’s exception to the hearsay rule.
V admissibility of cross-count similar fact evidence
[65] The Crown has applied to have the evidence on each count considered on the other counts as similar fact evidence. I have concluded that the evidence should be considered across counts.
[66] In a multi-count indictment, the admissibility of evidence across counts is determined by the application of the same principles that apply to the admissibility of extraneous similar fact or discreditable conduct evidence. As reaffirmed by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, evidence of discreditable conduct of the accused is presumptively inadmissible.[^1] The rationale for the rule is that the potential of the evidence for prejudice, distraction and time consumption is great and the disadvantages will almost always outweigh the probative value of the evidence.[^2]
[67] As with extraneous similar fact evidence, in determining the admissibility of evidence across counts, the evidence and the issue must be identified, and the probative value and prejudicial effect identified.
[68] As Doherty J. (as he then was) held in R. v. Sahaidak,[^3]
In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible against an accused on the other counts. Where, however, the events underlying the various counts are part of an ongoing course of dealings, and where those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count also enlighten and assist the trier of fact in understanding and assessing the evidence on the other counts, then evidence directly relevant to one count is admissible on the other counts as well. [Citation omitted]
In this case, Mr. Sahaidak's knowledge of the fraudulent nature of the transactions is the central issue. In my view, evidence of his involvement in and knowledge of any of these transactions is relevant to a determination of his state of knowledge on the other transactions.
[69] Similarly, in R. v. Lu, 2021 ONSC 7889,[^4] Di Luca J., relying on Sahaidak, held:
139 …The four trafficking counts are closely related, essentially forming part of one larger transaction. There is no issue that Mr. Lu delivered significant quantities of cocaine, fentanyl and fentanyl/heroin to the same undercover officer on four separate occasions over a number of months. There is also no issue that the undercover officer and Mr. Lu developed a working relationship over this period of time. Lastly, there is no issue that the same general modus operandi was applied in each instance, though I accept that money was given to Mr. Lu on only one of the four occasions. The modus operandi was that the parameters of the drug transaction were set between Mr. Doan and the undercover officer, and then Mr. Lu would then provide the drugs to the officer.
140 I am satisfied that as a matter of logic and common sense the issue of Mr. Lu's knowledge should be assessed across counts. The facts that support a finding of knowledge in relation to the first instance of trafficking are clearly relevant to and probative of whether Mr. Lu had the requisite knowledge on the second through fourth instances of trafficking, given the fact that they were undertaken in the same general circumstances and involved the same players. Simply stated, the evidence forms the context within which the assessment of knowledge is best determined. Indeed, it would be entirely artificial to consider Mr. Lu's knowledge in relation to the second (or third or fourth) transaction without considering the evidence of the earlier transaction(s). If the Crown can prove that Mr. Lu knew at the time of one of the earlier transactions that he was on that occasion providing a controlled substance to the undercover officer, this plainly bears on the issue of whether he also knew this during the subsequent transactions, or whether he was at the very least sufficiently aware of this likelihood to perceive the need to make further inquiries about the nature of the transaction.
[70] The circumstances of this case are similar to those in Sahaidak and Lu. The players are consistent in the three transactions; the location of the transactions is the same; and the modus operandi is similar.
[71] Assuming I am able to find that Mr. Tewolde was the person present in the area of the three transactions, there are competing inferences to be drawn from Mr. Tewolde’s presence at the transactions. The evidence of his presence and alleged actions at all three of the transactions inform the assessment of his role, if any, in the transactions and his knowledge, if any, of the nature of Mr. Abramcyzk’s dealings with the undercover officer.
[72] In reaching this conclusion,I have considered that the events are not particularly proximate in time and that there are differences in the alleged conduct. The evidence nevertheless has significant probative probative value. The prejudice is limited because the evidence is already part of the trial and because I am able to avoid forbidden lines of reasoning and will consider the dissimilarities and other available inferences in my ultimate weighing of the evidence.
VI Admissibility of the Utterances of Mr. Tewolde’s sister for their truth (Adoptive Utterances)
[73] The Crown seeks the admission of the content of the telephone call between Mr. Tewolde and his sister as adoptive admissions of Mr. Tewolde.
[74] Watt’s Manual of Criminal Evidence,[^5] at para. 36.04, sets out the general principles relating to adoptive admissions, in part, as follows:
An adoptive admission is a statement made by a third party in the presence of and adopted by D. There is only adoption to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D’s
i. words;
ii. actions;
iii. conduct; or
iv. demeanour.
Assent may also be inferred from D’s silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission.
The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction.
[Emphasis omitted.]
[75] Under the heading “Related Provisions and Principles”, Watt sets out additional requirements where an accused’s silence is alleged to constitute an adoptive admission:
Where silence is the manner of an alleged adoption, there are several conditions that must be met:
i. D must have heard the statement;
ii. the statement must be about a subject matter of which D was aware;
iii. D must not have been suffering from any disability or confusion;
iv. the declarant must not be someone to whom D would not be expected to reply.
[76] In this case, I am satisfied that the utterance of Mr. Tewolde’s sister that referred to Mr. Tewolde having a ‘secret phone’ is admissible for its truth as an adoptive admission. Mr. Tewolde, from the context of the conversation, appears to have heard the statement. He would be expected to be aware of whether or not he had a ‘secret phone’. There is nothing to suggest that he was suffering from any disability or confusion. I have considered that Mr. Tewolde did not, from the context of the call, seem to be interested in engaging with his sister. He ended the call quickly and said little. Nevertheless, there is some evidence that Mr. Tewolde by his silence adopted the admission that he had a secret phone.
[77] I reach a different conclusion with respect to the statement of Mr. Tewolde’s sister that when she answered the ‘secret phone’ the caller asked for ‘Uptee’. I find that this statement is not admissible for its truth as an adoptive admission. I cannot find that the statement concerned a subject matter of which Mr. Tewolde was aware. I cannot find that he was aware of what was said by the caller. His failure to deny what was said is not an adoptive admission.
VII use of the contents of the telephone conversation between the undercover officer and ‘michael’
[78] The Crown relies on the utterances of ‘Michael’ on October 7th and 8th, 2020 to identify Mr. Tewolde as the supplier of the firearms on October 7, 2020, and the potential supplier of future firearms.
[79] Counsel for Mr. Tewolde argues that the utterances of ‘Michael’ are inadmissible hearsay. The Crown submits that the utterances are admissions of the accused.
[80] An admission against interest made by an accused person is a recognized exception to the hearsay rule. There is no question that if the utterances of Michael are the utterances of Mr. Tewolde that they are against his interest and would be admissible. The issue is whether the utterances can be attributed to Mr. Tewolde.
[81] The Supreme Court of Canada held in R. v. Evans, 1993 CanLII 86 (SCC), that as long as there is some evidence identifying the accused with the proffered statement, the statement should be admitted into evidence. The consideration of whether the trier of fact can be satisfied that the accused made the statement is part of deliberations at the end of the trial based on all of the evidence.
[82] The evidence in this case easily meets the low threshold for admissibility. There is some evidence that the statement is that of Mr. Tewolde based on the contents of the statement that described the circumstances of the caller.
[83] Once admitted, Evans, prescribes a two-stage approach to the evidence by the trier of fact. At paragraph 36 of Evans, Sopinka J. wrote:
If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.
[84] In determining whether the Crown has shown on a balance of probabilities the Mr. Tewolde made the statement, I may use the contents of the statement, not for their truth but only for the fact they were made. In Evans, Sopinka J. held that similar statements had value on the issue of identity because they narrowed the identity of the declarant to a group of people who were in a position to make similar representations. The more unique or unusual the representations, the more probative they are on the issue of identity. The example given by Sopinka J. in Evans was the following:
For example, if a declarant stated: ‘I have a tattoo on my left buttock which measures 1 centimetre by 1 ½ centimetres and resembles a four leaf clover’ and it was proved that the accused had such a tattoo on his left buttock, the identity of the group to which the declarant belonged would be narrowed to include the accused as the most likely person, and his family or intimate friends, who would be in a position to know this fact. The statement has probative value without assuming the truth of the statement because the mere fact that it was made tells us something about the declarant that connects him to the accused.[^6]
[85] In this case, the declarant described characteristics that are consistent with Mr. Tewolde: he was recently released from jail; he wore an ankle monitor and he was subject to a curfew. The caller also described the car that Mr. Tewolde was driving that day: a grey Hyundai.
[86] I have considered this evidence and the evidence that Mr. Tewolde had previously used the alias “Michael”, and that he had a ‘secret phone’.
[87] I have concluded that although there are others who would know about these characteristics and who could be the declarants, the evidence of the contents of the statement, considered in the context of the other admissible evidence, establishes on a balance of probabilities that Mr. Tewolde was the declarant. The statement should be considered by me for its truth with the totality of the evidence in determining guilt or innocence.
VIII Admissibilty of the utterances of Mr. Abramczyk for their truth (co-actors’ exception)
[88] The Crown seeks the admission of the utterances of Mr. Abramczyk on October 7, 2020 for their truth under the co-actors’ exception to the hearsay rule.
[89] Counsel for Mr. Tewolde argues that the evidence is not admissible under the traditional exception and that it ought to be excluded under the principled approach to the hearsay rule.
[90] The traditional co-actors’ exception to the hearsay rule is well-established and its elements are not in dispute.
[91] There is a three-stage test for admissibility established in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. The three-step Carter test, as re-stated in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at para. 73, is as follows:
The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy.
If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then they must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step, only the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.
[92] At the first stage, all of the evidence is considered at this stage, including the alleged hearsay utterances.
[93] At the second stage, the court may only consider the evidence directly admissible against the accused. As observed by Di Luca J. in R. v. Lu,
Where there is no evidence, apart from the hearsay statements connecting the defendant with the conspiracy, this part of [the] test will not be satisfied, see R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.) at p. 544. While the hearsay utterances are not considered substantively at this stage of the analysis, the acts and statements of the defendant are considered in context with hearsay utterances only to the very limited extent necessary to permit a contextual assessment of the defendant's acts and statements, see R. v. Gagnon, 2000 CanLII 16863 (ON CA) at para. 62 and R. v. Wang, 2013 BCCA 311 at paras. 51-65. In doing so, caution must be exercised so as to prevent collapsing the first stage of the analysis with the second stage.
[94] At the third stage, the court is permitted to consider the acts and declarations of a co-conspirator but only to the extent that the acts or declarations were made "in furtherance" of the common unlawful enterprise.
[95] The three-stage Carter test applies to a common unlawful enterprise as well as to a charge of conspiracy. In this case, the common unlawful enterprise that is alleged is that Mr. Abramczyk and another person (who the Crown alleges is the accused, Mr. Tewolde) acted together to sell firearms. The position of the defence is that the Crown has failed to prove a conspiracy or common enterprise. The defence submits that the evidence goes no further than to support the inference that Mr. Abramczyk obtained firearms from a supplier for resale, but it does not support a common plan or objective. The defence further submits that the Crown has not shown on a balance of probabilities that Mr. Tewolde was a member of a common enterprise. Finally, the defence takes the position that this is a case where, even if the Carter test is met, the evidence should not be admitted because it is neither necessary nor reliable.
[96] As the Supreme Court of Canada held in R. v. Cotroni, 1979 CanLII 38 (SCC),[^7] “There must be evidence beyond [a] reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal.” It is not enough for two persons to pursue the same unlawful object at the same time or in the same place, what is required is a consensus to effect an unlawful purpose.
[97] The question that must be asked at this first stage is, ‘What did the alleged conspirators or co-actors agree to?’
[98] I am satisfied beyond a reasonable doubt that a common enterprise existed on October 7, 2020, when Mr. Abramczyk made the utterances to the undercover officer about his supplier. On that date, the caller identified as Michael telephoned the undercover officer just after the officer spoke to Mr. Abramczyk. The caller continued the negotiations for gun sales that had been commenced by Mr. Abramczyk. The Crown seeks only to introduce the utterances of October 7, 2020 against Mr. Tewolde. As a result, I need not consider whether a common enterprise existed at the time of the August 13th or October 20th transactions.
[99] Having concluded beyond a reasonable doubt that a common enterprise existed on October 7, 2020, when Mr. Abramczyk described ‘Michael’ or ‘Dubbs’ to the undercover officer and said that he was a firearms supplier, I must determine whether the Crown has shown, on a balance of probabilities, that Mr. Tewolde was a member of the conspiracy or common enterprise relying only on the evidence that is directly admissible against Mr. Tewolde.
[100] I am satisfied on a balance of probabilities that Mr. Tewolde was a member of the common enterprise. I have considered that Mr. Tewolde was present in the area and was driving a car that matched the car described by the caller ‘Michael’. I have considered the undisputed facts that Mr. Tewolde had just been released from jail, was on a curfew and had an ankle monitor just as ‘Michael’ described in his call to the officer.
[101] As I will describe later in these reasons, in my consideration of the use of the contents of the phone call with Michael, there are reasons to question whether Mr. Tewolde was the caller identified as Michael. However, for the purposes of the application of the co-actors’ exception to the hearsay rule, the evidence of the call and its contents is admissible against Mr. Tewolde and must be considered by me in the second stage of the Carter test.
[102] I am therefore satisfied on the standard of a balance of probabilities that Mr. Tewolde was probably a member of the common enterprise.
[103] I am also satisfied that the hearsay utterance of Mr. Abramczyk regarding the characteristics of his supplier was made in furtherance of the common goal of selling firearms. Mr. Abramczyk made the utterance when he was negotiating future sales and to reassure the buyer of the guns.
[104] The utterance therefore meets the conditions for admission under the traditional exception.
[105] In R. v. Mapara, 2005 SCC 23,[^8] the Supreme Court of Canada found that in rare cases, an utterance that meets the conditions for admission under the traditional exception may be excluded because it fails to meet the requirements of necessity and reliability.
[106] As our Court of Appeal explained in R. v. Kler, 2017 ONCA 64,[^9] the onus of establishing that the evidence does not meet the requirements of necessity and reliability falls upon the party seeking exclusion.
[107] The absence of evidence as to the availability of Mr. Abramczyk’s testimony cannot be used to exclude the evidence. No application was brought to exclude the evidence on this basis and the issue was raised in final submissions. The defence, who bore the onus, called no evidence on this point. I would not exclude the evidence based on a failure to show that it was necessary.
[108] Counsel for Mr. Tewolde pointed to several concerns with the reliability of the utterances of Mr. Abramczyk. These will be discussed in more detail later in these reasons when I address the ultimate reliability of the utterances of Mr. Abramczyk concerning his suppliers. The issue at the stage is admissibility.
[109] As Watt J.A. explained n R. v. Kler, “Indicia of reliability are found in the Carter rule for a conspiracy proved beyond a reasonable doubt, membership of the accused in it on a balance of probabilities and the rule that any statements made in furtherance of the conspiracy are admitted to complete the proof against an individual accused….It is difficult to conclude that evidence falling under the Carter rule would lack the indicia of necessity and reliability required for the admission of hearsay under the principled approach. Apart from the most exceptional cases, the argument is exhausted where the traditional exception is found to be compliant with the principled approach.”[^10]
[110] This is not an exceptional case where the evidence lacks the indicia of necessity and reliability. I therefore find that the utterances of Mr. Abramczyk on October 7, 2020 concerning the supplier of the gun are admissible.
IX has the crown proven the guilt of mr. tewolde beyond a reasonable doubt?
[111] Mr. Tewolde is charged with a criminal offence. Certain fundamental principles apply in this and all criminal cases. Mr. Tewolde is presumed to be innocent of the charges against him. He can only be found guilty if the Crown has proven his guilt beyond a reasonable doubt. The standard of proof of guilt beyond a reasonable doubt means that probable or likely guilt is not enough. The Crown must prove all of the elements of the offences to this standard.
[112] The Crown’s case relies on circumstantial evidence.
[113] The Supreme Court of Canada, in R. v. Villaroman, 2016 SCC 33,[^11] set out the principles applicable to cases involving circumstantial reasoning. In the case of R. v. Gill, 2017 ONSC 3558,[^12] Fairburn J. (as she then was) summarized those principles as follows:
• …Where one or more element of an offence relies largely or exclusively on circumstantial evidence, ‘an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits’: Villaroman, at para. 30.
• Staying focused on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not ‘fill in the blanks’ or ‘jump to conclusions’ too quickly: Villaroman, paras. 29-30.
• While previous cases speak in terms of other ‘rational’ inferences, the unanimous Villaroman court settled upon the term ‘reasonable’: see, R. v. Griffin, 2009 SCC 28 at para. 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while ‘reasonable’ and ‘rational’ inferences carry the same meaning, and it is not in error to speak in terms of ‘rational inferences’, the use of the term ‘reasonable’ guards against any confusion that may arise from the use of ‘reasonable doubt’ and ‘rational inference’.
• Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4 at para. 58, the defence does not have to ‘'prove' certain facts in order for the jury to draw an inference of innocence from them’. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the ‘range of reasonable inferences that can be drawn’ from the circumstantial evidence. As in Villaroman, at para. 35, ‘[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.’
• A theory alternative to guilt is not ‘speculative’ simply because there is no affirmative evidence supporting the theory. A ‘theory alternative to guilt’ can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be ‘reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense’: Villaroman, at paras. 36-38.
• Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’: Villaroman, at para. 37, adopting R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation.
• As noted by Cromwell J., at para. 38, the ‘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’.
[114] Cromwell J. at paragraph 42 of Villaroman stated that “alternative inferences [to guilt] must be reasonable, not just possible”.
[115] The circumstantial evidence in this case includes the evidence of Mr. Tewolde’s presence in the area of each of the three transactions. Mr. Tewolde has not conceded that the man observed and photographed by police around the time of each transaction was in fact him.
[116] I find as a fact that the man in the area of 1307 Wilson Avenue, around the time of each transaction, was Mr. Tewolde.
[117] A photograph of Mr. Tewolde from police records was filed as an exhibit. A further image of Mr. Tewolde taken at the execution of a search warrant at his home on January 12, 2021 was also filed.
[118] In accordance with the principles in R. v. Nikolovski, 1996 CanLII 158 (SCC),[^13] I have reviewed the photographs from August 13, 2020, and compared them to the admitted photographs of Mr. Tewolde around the same time period. I have also compared them to Mr. Tewolde’s appearance at this trial. I am satisfied that Mr. Tewolde was the man who was present on August 13, 2020 in the white Elantra.
[119] In reaching this conclusion I have also considered the evidence of telephone contact between Mr. Tewolde and Mr. Abramczyk and the evidence of Mr. Tewolde’s presence at 1307 Wilson on other occasions, including August 18th and 19th of 2020 when he was driving the white Elantra.
[120] I have concluded that Mr. Tewolde was the person driving the grey Hyundai on October 7th, 2020. In reaching this conclusion I have taken into account the evidence that on October 8th and 14th of 2020 a man was seen to come from the area of Mr. Tewolde’s address and to enter the grey Hyundai. I have reviewed the photographs taken of the person on October 8, 2020, and I have compared his appearance to known photos of Mr. Tewolde. I have considered the evidence of the proximity of Mr. Tewolde’s address to the car. I have considered the evidence that a car registered to Teferi Tewolde at the same address as Kimyhel Tewolde was seen to leave Mr. Tewolde’s address and to drop a man matching the description of Kimyhel Tewolde at the location of the grey Hyundai on October 14, 2020.
[121] I have also concluded that Mr. Tewolde was the person driving the white SUV on October 20, 2020. On that date, police took a photograph of the driver of the white SUV that picked up Mr. Abramczyk and the guitar case. Again, based on my examination of the photograph and a comparison to known photographs of Mr. Tewolde and his appearance in court, I find that he was the driver of the SUV.
[122] I have considered the evidence that Mr. Abramczyk gave an envelope to Mr. Tewolde on August 13, 2020, after selling the firearm to the undercover officer and receiving money in a brown Tim Horton’s bag. I cannot find that the envelope observed by the officer was in fact the Tim Horton’s bag as submitted by the Crown. The officer who observed the envelope was familiar with the appearance of a Tim Horton’s bag. He did not see a brown Tim Horton’s bag. He saw an envelope. The evidence that Mr. Abramczyk gave an envelope to Mr. Tewolde on August 13, 2020 is, however, a piece of circumstantial evidence tying Mr. Tewolde to Mr. Abramczyk. The timing of the apparent payment is capable of connecting Mr. Tewolde to the transaction.
[123] I have considered that Mr. Tewolde was present in the parking lot of 1307 Wilson on the occasion of each firearms transaction in issue in this trial. He was also present at 1307 Wilson with Mr. Abramczyk on other dates like August 18th and 19th when no firearms transactions occurred.
[124] The undercover officer testified that other firearms transactions occurred beyond the three transactions in this case. Mr. Tewolde was not present for those transactions.
[125] In addition to Mr. Tewolde’s presence in the area and interactions with Mr. Abramczyk, the circumstantial evidence in this case includes the evidence of the phone call from Michael and the statements of Mr. Abramczyk, that his supplier was Michael or Dubbs. Both Michael and Mr. Abramczyk said that Michael was on a curfew, had an ankle bracelet and was recently released from jail. As I have explained, I found this evidence to be admissible. It is evidence to be considered with the totality of the evidence.
[126] Mr. Tewolde admitted having a secret phone and had used the name ‘Michael’ before. He was on a curfew and wore an ankle monitor, having recently been released from jail.
[127] The evidence is consistent with Mr. Tewolde being the caller, but another reasonable inference is that Mr. Abramczyk arranged and directed the call in order to deceive the officer with respect to the identity of the supplier.
[128] Mr. Abramczyk clearly initiated the contact between the caller and the undercover officer on October 7, 2020. Mr. Abramczyk said, in his call with the undercover officer, that he was delayed and that the undercover officer should talk to ‘his boy.’ Within a minute the officer received the call from Michael. The rational inference from the timing of the calls is that Mr. Abramczyk arranged for Michael to call the officer. The officer negotiated future purchases with Michael. Michael also discussed the completion of the October 7, 2020 transaction with the officer.
[129] The officer specifically noted that the voice on the phone sounded young. He qualified that later in his testimony as meaning that the caller sounded younger than the officer (whose age is not part of the record). The officer also testified that the caller was possibly a ‘kid’. I have listened to the voice of Mr. Tewolde on the intercepts filed in the trial. His voice does not sound particularly young.
[130] The phone number for the incoming call from ‘Michael’ was registered to a person noted as ‘Dillion Brown’. Investigation revealed that the name was likely Dillon Brown. Detective Woodland reviewed video footage from 1309 Wilson Avenue for October 7, 2020. She noted a male at that address, on that date,who matched the general description of Dillon Brown. The phone number was one that had contact with the number associated with Mr. Abramczyk. The grey Hyundai had dropped a passenger at 1309 Wilson Avenue that evening.
[131] Mr. Abramczyk, in light of his contact with Mr. Tewolde, was a member of a group that would be aware of Mr. Tewolde’s circumstances, including his recent release from custody, curfew and ankle monitor. He would be aware of the type of car Mr. Tewolde was driving.
[132] I have considered Mr. Abramczyk’s pattern of lying about his supplier and attempting to mislead the undercover officer about the identity of the supplier. Mr. Abramczyk concocted an elaborate lie about ‘P’. ‘P’ was someone with a connection to Mr. Abramczyk and he was a person involved in other criminality. I have considered this pattern and history in weighing the evidence of the call and the evidence of Mr. Abramczyk’s statements. I have considered this history in determining whether there is another reasonable inference from the totality of the circumstantial evidence in this case.
[133] The submission of the Crown is that the cumulative effect of all of the circumstantial evidence is that the only reasonable inference is that Mr. Tewolde was the supplier of the firearms sold to the undercover officer by Mr. Abramczyk. This finding would result in findings of guilt on all counts in the indictment.
[134] I am not satisfied that this is the only reasonable inference on the evidence. Other reasonable inferences are that the supplier was Dillon Brown or Ibrahim Ahmed or an unknown person. It is a reasonable inference that Mr. Tewolde was in the area of Mr. Abramczyk’s residence because he was meeting with Mr. Abramczyk for innocent purposes or for the purpose of drug dealing or other criminality. The passing of the envelope on August 13th, 2020, is consistent with Mr. Tewolde being paid for drugs or for driving Mr. Abramczyk or performing other tasks for him.
[135] Mr. Tewolde was the driver of the vehicle that transported Mr. Abramczyk and the firearm for the October 20, 2020 transaction. His conduct goes beyond mere presence on that occasion. The issue with respect to the transaction on the 20th is Mr. Tewolde’s knowledge of the contents of the guitar case.
[136] I am not satisfied beyond a reasonable doubt that Mr. Tewolde knew that the guitar case contained a firearm. The other reasonable inference from the whole of the evidence is that Mr. Tewolde drove Mr. Abramczyk at his request without knowing the contents of the case.
X conclusion
[137] In summary, having considered all of the evidence, including the evidence across counts, I am not satisfied beyond a reasonable doubt that Mr. Tewolde was the supplier of the firearms or that he knowingly assisted Mr. Abramczyk to sell or transport the guns. The evidence supports an inference that he did so, but it also supports other reasonable inferences including mere association or involvement in other criminality. While the totality of the circumstances is highly suspicious and even rises to the level of probable guilt, I cannot find guilt beyond a reasonable doubt and therefore must acquit Mr. Tewolde.
Forestell J.
Released: September 5, 2023
COURT FILE NO.: CR-22-00000016-0000
DATE: 20230905
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
KIMYHEL TEWOLDE
reasons for judgment
Forestell J.
Released: September 5, 2023
[^1]: R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57, at para. 31 [^2]: Ibid., at para. 37 [^3]: [1990] O.J. No. 3228, at paras. 150-152 [^4]: 2021 ONSC 7889 (S.C.J.) [^5]: Watt, David (2013) Toronto: Thomson Carswell [^6]: Evans, at para. 24 [^7]: (1979), 1979 CanLII 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C). [^8]: 2005 SCC 23, [2005] 1 SCR 358 [^9]: 2017 ONCA 64 [^10]: Kler, supra, at paras. 78 and 79 [^11]: 2016 SCC 33 [^12]: 2017 ONSC 3558, at paras. 9-13 [^13]: 1996 CanLII 158 (SCC), [1996] 3 SCR 1197