COURT FILE NO.: 18-5488
DATE: 2023/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ISMAIL MOHAMED
Clara Lafrance, for the Crown
Michael Smith, for Mr. Mohamed
HEARD: June 19, 20 and 21 and July 10 and 12, 2023
REASONS FOR DECISION
(ABBREVIATED VERSION RELEASED ORALLY NOVEMBER 23, 2023)
H.J. Williams, J.
OVERVIEW
[1]. Ismail Mohamed has been charged with seven counts under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and the Criminal Code, R.S.C., 1985, c. C-46.
[2]. The first two counts are possession for the purpose of trafficking under s. 5(2) of the CDSA. Count 1 is in respect of cocaine; count 2 is in respect of crack cocaine.
[3]. The third count is possession of proceeds of crime under s. 355(a) of the Criminal Code. The count specifies Canadian currency of a value exceeding $5,000.
[4]. The remaining four counts relate to possession of a restricted firearm.
[5]. The offences are all alleged to have taken place on October 24, 2018.
[6]. A 9-mm Luger handgun was found when the Ottawa Police executed a search warrant that morning at 70 Landry Street in Ottawa. Cocaine and crack cocaine were found later that morning in a search at 1801 Riverside Drive.
THE EVIDENCE
[7]. The case against Mr. Mohamed is based on circumstantial evidence.
[8]. Eight members of the Ottawa Police Service testified about their surveillance of Mr. Mohamed and the search warrant executions.
[9]. There was no expert evidence.
[10]. Mr. Mohamed did not testify, as is his right.
[11]. The defence called one witness, Omar Omar, who said the drugs found at 1801 Riverside belonged to him, and that Mr. Mohamed knew nothing about them.
The surveillance evidence
[12]. The Ottawa Police conducted surveillance of Mr. Mohamed for five days, but only saw him on four of those days, October 13th, 17th, 18th and 22nd.
[13]. Police set up surveillance on October 19th but did not see Mr. Mohamed.
[14]. The officers who testified said they were able to identify Mr. Mohamed through a 2016 Ministry of Transportation photograph they were provided during their briefing as part of the surveillance package they were given.
[15]. Mr. Mohamed was seen driving two vehicles. On October 13th he was driving a white Ford Escape. (A rental agreement for that vehicle in Mr. Mohamed’s name was found in the unit at 70 Landry the day of the search.) The other days, Mr. Mohamed was driving a black Nissan Altima.
[16]. The vehicles were seen parked in the parking garage at 70 Landry.
[17]. Mr. Mohamed was seen driving to 1801 Riverside on multiple occasions.
[18]. Mr. Mohamed was observed entering the building at 1801 Riverside on at least eight occasions.
[19]. On one occasion, Mr. Mohamed was seen entering unit 1007 at 1801 Riverside, using a key.
[20]. Mr. Mohamed typically spent less than 10 minutes inside 1801 Riverside.
[21]. Following most of his visits to 1801 Riverside, Mr. Mohamed was seen meeting with another person. Typically, the other person would get into the passenger seat of his vehicle, or Mr. Mohamed would get into the passenger seat of the other person’s vehicle. These meetings were brief.
[22]. Mr. Mohamed was seen carrying a plastic bag and, on another occasion, a gym bag. On more than one occasion, he was seen putting something in his pocket. He was seen handing something to a person, and on one occasion, a person was seen putting something in the central console of their vehicle after Mr. Mohamed left the vehicle. However, police never heard any of Mr. Mohamed’s conversations and never saw an exchange of drugs for money.
[23]. On October 17th, Mr. Mohamed was seen disposing of a white plastic bag in a dumpster in the Baycrest and Cedarwood area.
[24]. Det. Wes Cory retrieved the bag from the dumpster. Det. Cory said that, inside, he found plastic and duct tape he identified as empty packaging for a kilogram of cocaine. He said it was what police would call a “kilo wrapper.” (The defence witness, Mr. Omar, also identified photographs of the packaging found in the dumpster as being cocaine packaging.)
[25]. The last time police saw Mr. Mohamed at 1801 Riverside was mid-afternoon on October 22nd. Their last observation of him prior to the searches the morning of October 24th was on October 22nd at 4:12 p.m., when he was seen parking at 70 Landry and entering the building.
Execution of the search warrants
[26]. The morning of October 24, 2018, search warrants were executed at both 1801 Riverside, Unit 1007 and at 70 Landry, Unit 1010.
[27]. Cocaine, crack cocaine and scales were among the items seized from the unit at 1801 Riverside.
[28]. A firearm, $91,540 in Canadian cash and a Canadian passport and other documents with Mr. Mohamed’s name on them were among the items seized from the unit at 70 Landry.
[29]. Mr. Mohamed was found at 70 Landry and was arrested.
The evidence of Omar Omar
[30]. Mr. Omar was a defence witness.
[31]. Mr. Omar said he lives in Ottawa and works as a driver for Amazon.
[32]. Mr. Omar said he has been friends with Mr. Mohamed for about 10 years.
[33]. Mr. Omar said that in 2017 and 2018, he was a drug dealer in Ottawa. He said that he was primarily involved in selling cocaine and that he was involved “at the kilogram level.”
[34]. Mr. Omar said he used apartment 1007 at 1801 Riverside as a stash house in 2017 and 2018 and that the lease was in the name of his girlfriend, Martina Charlebois.
[35]. Mr. Omar said he stored his drugs at the apartment and hung out there.
[36]. He said that in 2017 and 2018 he was selling drugs daily.
[37]. He said there were three keys to the apartment: he had one; Ms. Charlebois had one; and several of his friends would share the third one.
[38]. Mr. Omar said he had several friends who used his apartment. Asked why, he replied that it was because they were his friends. He said his friends would party at the house, have some drinks and invite girls over.
[39]. Mr. Omar said his friends would never drop in at the apartment without calling him first and that if he had drugs at the apartment, he would tell them not to go there. He said his friends were never there when drugs were there.
[40]. Mr. Omar said that he didn’t keep track of how frequently his friends used the apartment, but it was probably three or four times/week.
[41]. Mr. Omar said that Mr. Mohamed was one of the friends who had access to the third key.
[42]. Mr. Omar said that Mr. Mohammad was not aware that there were drugs stored in the apartment, that Mr. Mohamed did not know that Mr. Omar was a drug dealer, and that Mr. Mohamed was not involved in dealing drugs.
[43]. Mr. Omar said the last time he was at the apartment was the evening of October 23, 2018. He said he stored a kilogram of cocaine there at that time.
Admissions
[44]. A number of admissions were listed in Exhibit 1. The admissions include jurisdiction and that Mr. Mohamed was arrested at unit 1010-70 Landry at about 8:08 a.m. on October 24, 2018.
[45]. The items that were seized from Unit 1010 at 70 Landry at Unit 1007 at 1801 Riverside were all admitted, as well as continuity of the evidence in respect of them.
[46]. That an Air Jordan box and two bags found at 70 Landry tested positive for cocaine was admitted.
[47]. The certificate of firearms and ammunition analyst prepared by Detective Joseph Meehan was also admitted.
THE LAW
[48]. Mr. Mohamed is, of course, presumed innocent, unless the Crown proves guilt beyond a reasonable doubt.
Proof beyond a reasonable doubt
[49]. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Believing that an accused is probably guilty or likely guilty is not sufficient. In those circumstances, the benefit of the doubt must be given to the accused person, because the Crown has failed to prove guilt beyond a reasonable doubt. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. (R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para. 39.)
Possession, possession for the purpose of trafficking, possession of property obtained by crime and circumstantial evidence
[50]. I adopt the following summary of the law, which is taken from my colleague Ryan Bell J.’s decision in R. v. Chu, 2021 ONSC 3825, which was upheld by the Court of Appeal (2023 ONCA 183).
Possession
[51]. The charges before the court all require the Crown to establish possession beyond a reasonable doubt.
[52]. Section 4(3) of the Criminal Code defines possession and provides that, for the purposes of the Code,
(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 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.
[53]. Section 2 of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code.
[54]. On an allegation of personal possession, the requirement of knowledge is comprised of two elements: the accused must be aware that he or she has physical custody of the thing in question and, the accused must be aware of what that thing is. Both elements must co-exist with an act of control: R. v. Morelli, 2010 SCC 8, at para. 16.
[55]. 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).)
[56]. Constructive possession requires that the accused: (i) has knowledge of the character of the object; (ii) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him; and (iii) intends to have the object in the particular place for his “use or benefit” or that of another person: Morelli, at para. 17.
[57]. To establish possession, the Crown must prove the elements of knowledge and control beyond a reasonable doubt.
[58]. As with other offences, the Crown may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence: R. v. Bains, 2015 ONCA 677, at para. 157. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to the trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: Bains, at para. 157.
[59]. The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself: R. v. Pham, 2005 CanLII 44671 (ON CA).
Possession for the Purpose of Trafficking
[60]. Section 2 of the CDSA defines “traffic” to include selling, giving, transferring, or offering to do so. Section 5(2) prohibits anyone from possessing a controlled substance for the purpose of trafficking.
[61]. In order to prove an offence of possession for the purpose of trafficking, the Crown must prove the following elements beyond a reasonable doubt: (i) identity of the accused; (ii) jurisdiction; (iii) that the accused possessed a substance included in one of the schedules of the CDSA; and (iv) that the accused intended to traffic.
[62]. The intent to traffic is determined on the totality of the evidence and may be proved by drawing inferences from the evidence. As Martin J.A. observed in R. v. Oakes, 1983 CanLII 1850 (ON CA):
In cases where narcotics are possessed for the purpose of trafficking, the quantity is usually such as to indicate the possession of the drug is not for personal use. Frequently…the drugs are packaged in such a way as to indicate that they are intended to be distributed. Commonly, where substantial quantities of a narcotic are found in the possession of an accused other indicia of trafficking are also found, such as packaging material, bags, scales, and records; such evidence is, of course, sometimes supplemented by surveillance, including electronic surveillance. Where the possession of a narcotic drug is of such a nature as to be indicative of trafficking, the common sense of a jury can ordinarily be relied upon to arrive at a proper conclusion.
Possession of Property Obtained by Crime
[63]. The elements of the offence of possession of property obtained by crime are: (i) identity of the accused; (ii) jurisdiction; (iii) that the accused possess the property or proceeds; (iv) that the property or proceeds were obtained or derived, either directly or indirectly, as a result of the commission of an indictable offence; and (v) that the accused knew that the property or proceeds were obtained or derived, directly or indirectly, as a result of the commission of an indictable offence.
Circumstantial Evidence
[64]. This case rests on circumstantial evidence. Where the Crown’s case depends on circumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, at para. 55; R. v. Wu, 2017 ONCA 620, at para. 9.
[65]. The circumstantial evidence does not have to totally exclude other conceivable inferences; “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman, at para. 56, citing R. v. Dipnarine, 2014 ABCA 328, at para. 22.
[66]. Where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact; it does not apply “piecemeal” to individual items of evidence: Wu, at para. 15. The correct approach was summarized by the Court of Appeal for Ontario in R. v. Uhrig, 2012 ONCA 470, at para. 13, cited in Wu, at para. 15:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin [citations omitted]. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King [citations omitted].
[67]. The court is entitled to consider that the accused did not testify and did not adduce evidence to support any other reasonable inference consistent with the accused’s innocence: R. v. Noble, [1997] S.C.R. 874, at para. 89; Wu, at para. 16. Silence may indicate that there is no evidence to support speculative explanations of the Crown’s evidence offered by defence counsel; if, however, there is a rational explanation which is consistent with innocence and which may raise a reasonable doubt, the silence of the accused cannot be used to remove that doubt: Noble, at para. 89.
ISSUE
[68]. The over-riding issue in this case is possession and whether Mr. Mohamed possessed the cocaine and crack cocaine, the cash and the firearm.
ANALYSIS
Counts 1 and 2: The drug charges
[69]. The cocaine and the crack cocaine that is the subject of counts 1 and 2 was found in Unit 1007-1801 Riverside during the police search on October 24, 2018.
[70]. There is no evidence and indeed no suggestion that Mr. Mohamed was in physical possession of these substances. Mr. Mohamed was not present when the substances were found.
[71]. The Crown must, therefore, prove that Mr. Mohamed had constructive possession of the drugs. The Crown must prove knowledge which extends “beyond mere quiescent knowledge and discloses some measure of control over the items to be possessed.” (Quiescent means inactive, dormant or motionless: R. v. Gough, 2014 BCPC 204, at para. 107.)
[72]. I will begin by considering the evidence of Mr. Omar. As I am entitled to do, I accept some but not all of Mr. Omar’s evidence. I found some of Mr. Omar’s evidence to be credible when he testified about his knowledge of and experience in drug and particularly cocaine trafficking. However, I did not find the thrust of Mr. Omar’s testimony, which was that Mr. Mohamed had no knowledge of or control over the cocaine and crack cocaine that was found in Unit 1007 at 1801 Riverside to be at all credible.
[73]. There were internal inconsistencies in Mr. Omar’s evidence, he did not remember facts I would have expected him to remember and some of his evidence simply did not make sense. For example:
• Mr. Omar said he had several friends who would use the apartment. He said they would hang out there, party, have drinks and invite girls there. He said they could not just show up unannounced; he said if there were drugs in the unit, he would tell them not to go there, and that he controlled when other people went to the apartment. Mr. Omar said his friends would access the unit three or four times a week. However, on cross-examination, he said that he purchased a kilogram of cocaine at a time and that in 2018 he was dealing drugs every day. He agreed that drugs would need to be stashed at the apartment almost every day. I consider his evidence that he kept drugs at the apartment almost every day to be inconsistent with his evidence that his friends were probably there three or four times a week, and he did not allow his friends to be there when his drugs were there.
• Although he said that, through his girlfriend, he leased the apartment at 1801 Riverside from June of 2017 until October of 2018, and that he sold drugs from rented or borrowed vehicles, Mr. Omar could not remember if the apartment at 1801 Riverside included a parking space.
• Although Mr. Omar was able to name the people he said had access to his apartment, he said that he could not remember the names of friends from whom he borrowed the cars he sometimes used for his drug dealing, even though he described them as somewhat good friends.
• Mr. Omar said that he once found a Wi-Fi bill in the Riverside apartment that was in someone else’s name. Mr. Omar said he didn’t ask any questions about it at the time, because it wasn’t a big deal to him. Mr. Omar then said that a friend had a Wi-Fi bill sent to the Riverside apartment every month. Mr. Omar then said that he had asked his friend if he could put his Wi-Fi bill in the friend’s name. Asked why, Mr. Omar said that it was because he was dealing drugs and he did not want his name to be associated with the unit. The Wi-Fi bill was in the name of Mr. Omar’s Farah Qalib, one of the people Mr. Omar said had access to the Riverside apartment. A Bell bill bearing the address of the Riverside apartment was found during the search of Unit 1010 at 70 Landry.
• Mr. Omar said had put the cocaine that was found at 1801 Riverside during the search on October 24th in an empty Air Jordan shoe box. However, police found a pair of shoes in the box, as well as the cocaine.
• Mr. Omar said that Mr. Mohamed, who he said shared a key to the apartment with several other people, only would have visited the apartment by himself “once in a blue moon.” Mr. Omar said that in the 22 months he leased the apartment, Mr. Mohamed may have been in the apartment by himself maybe seven or eight times. Mr. Omar’s evidence is inconsistent with the surveillance evidence that showed Mr. Mohamed entering 1801 Riverside at least eight times in the space of just a few days.
[74]. I did not believe Mr. Omar when he said that Mr. Mohamed had no knowledge of the drugs in the Riverside apartment.
[75]. Mr. Omar’s evidence did not raise a reasonable doubt in my mind about whether Mr. Mohamed had knowledge of the drugs.
[76]. I turn now to whether the Crown has proven that the only reasonable inference from the evidence as a whole is that Mr. Mohamed had knowledge of and control over the drugs found in the Riverside apartment. This will require a review of the evidence, some of which I have already referred to.
• I have already referred to the surveillance evidence that showed that Mr. Mohamed entering 1801 Riverside on multiple occasions.
• On one occasion, Mr. Mohamed was seen entering unit 1007, using a key.
• On most occasions, Mr. Mohamed remained in the Riverside building for less than 10 minutes.
• On most occasions, immediately after leaving the building, Mr. Mohamed would meet with someone, most often in his vehicle or their vehicle, for just a few minutes. This evidence is consistent with how Mr. Omar said he sold drugs: Mr. Omar said he would sell from cars, that he would meet the buyer in his car or their car, and that the meetings would typically last two or three minutes.
• On October 17th, Mr. Mohamed was seen disposing of a white plastic bag that had in it what Det. Cory described as an empty kilo wrapper—packaging for a kilogram of cocaine. Mr. Omar confirmed that the packaging in the photographs marked as Exhibit 15, which were photographs of what Det. Cory had found in the white plastic bag, was cocaine wrapping.
[77]. There were unmistakable connections between some of the evidence found in the unit at 1801 Riverside and the unit at 70 Landry, where Mr. Mohamed was found on October 24th:
• A key was seized from 70 Landry that fit the dead bolt at Unit 1007, 1801 Riverside.
• Mr. Mohamed’s fingerprints were identified on a Tupperware container that had cocaine in it that was found in the bedroom in the unit at 1801 Riverside.
• The Air Jordan shoe box, the Louis Vuitton Bag and the Checkmate bag which contained cash and were found at 70 Landry all tested positive for cocaine.
• A 9mm Luger handgun was found in an open Louis Vuitton bag in the living room of 70 Landry. It was loaded. Det. Matthew Cox observed one bullet in the chamber and other bullets in the magazine.
• A 9mm magazine with one round of ammunition was found at 1801 Riverside. (Note: Although the magazine in the firearm found at 70 Landry and the magazine found at 1801 Riverside were both 9-mm magazines and look similar, there was no evidence that the magazine found at Riverside fit the gun found at Landry. The inference I draw from the magazine found at Riverside is that someone who was in the apartment at some point was either in possession of a gun or expected to be, or expected someone else to be, in possession of a gun in the apartment in the future.)
• A Bell bill in the name of Farah Qalib for 1007-1801 Riverside was found at 70 Landry, as was a Bell bill in Mr. Mohamed’s name for 1010-70 Landry.
• An Air Jordan box with cocaine inside was seized from 1801 Riverside. An Air Jordan box with cash inside was seized from 70 Landry.
[78]. In my view, a strong inference can be drawn from all of the evidence that Mr. Mohamed was trafficking cocaine and that he had knowledge and control of the cocaine and the crack cocaine found at 1801 Riverside on October 24, 2018.
[79]. However, I am not satisfied that this is the only reasonable conclusion that is available on all of the evidence.
[80]. The last time police saw Mr. Mohamed before the search warrants were executed on October 24, 2018, was on October 22, 2018 at 4:12 p.m., when Mr. Mohamed parked at 70 Landry and entered the building.
[81]. Mr. Mohamed was last seen at 1801 Riverside at 3:01 p.m. that day.
[82]. The surveillance of Mr. Mohamed was limited to five days; he was not seen at all on one of those days and only briefly on another of the days.
[83]. The lead investigator in the case, Det. Payment, admitted that police did not know who resided at the Riverside Drive unit or in whose name the Riverside Drive unit was leased. Det. Payment also agreed that there could have been multiple people living at the unit or on the lease for the unit.
[84]. Unlike the situation in the Chu decision of Ryan Bell J., which Mr. Mohamed’s counsel urged me to consider, there is no evidence that I have accepted that anyone other than Mr. Mohamed had access to the apartment. (To be clear, I rejected Mr. Omar’s evidence that he leased the apartment in his girlfriend’s name. There was no evidence that Mr. Omar would have been at the apartment if he had not been leasing it himself.) However, there was limited surveillance in this case and no extended surveillance at the door of the unit at 1801 Riverside to show who went in and out. Consequently, I cannot be satisfied that people other than Mr. Mohamed did not have access to the apartment.
[85]. This was a close call. However, I find that because of the limited surveillance of the apartment at 1801 Riverside and the gap in time between 3:01 pm on October 22nd when police last saw Mr. Mohamed at the building and the search the morning of October 24th, a reasonable inference could be drawn that someone else also had access to the apartment, perhaps an associate of Mr. Mohammed, and that someone other than Mr. Mohamed could have entered the apartment at 1801 Riverside and stashed the cocaine and/or the crack cocaine that was seized in the apartment after Mr. Mohamed was last there.
[86]. For these reasons, I find Mr. Mohamed not guilty of count 1 and count 2.
COUNT 3: possession of property obtained by crime
[87]. I have already noted that the elements of the offence of possession of property obtained by crime are: (i) identity of the accused; (ii) jurisdiction; (iii) that the accused possess the property or proceeds; (iv) that the property or proceeds were obtained or derived, either directly or indirectly, as a result of the commission of an indictable offence; and (v) that the accused knew that the property or proceeds were obtained or derived, directly or indirectly, as a result of the commission of an indictable offence.
[88]. That Mr. Mohamed was arrested by Ottawa Police in the bedroom of Unit 1010-70 Landry shortly after 8 a.m. on October 24, 2018 is admitted. Mr. Mohamed was also identified by Det. Cory.
[89]. Jurisdiction is also admitted.
[90]. I am satisfied that the only inference to be drawn from the totality of the evidence is that Mr. Mohamed had knowledge of and control over the $91,540 seized from 70 Landry, that the money was obtained or derived from the commission of an indictable offence and that Mr. Mohamed knew this.
[91]. This is for the following reasons:
• Mr. Mohamed was found in the apartment.
• He was the only person in the apartment.
• A Bell bill found in the apartment connected Mr. Mohamed’s name to the address.
• Papers identifying Mr. Mohamed, including his passport, banking and tax documents were found in the apartment.
• Mr. Mohammed’s total income in 2015 was just over $7,000. He did not file income tax returns in 2016 or 2017.
• Most of the money was hidden. More than $36,000 was found in an Air Jordan shoe box in the bottom drawer of the oven and two bags containing a total of more than $54,000 was found behind the refrigerator.
[92]. Mr. Mohamed’s counsel suggested that it would be reasonable to infer that Mr. Mohamed could have succeeded in a civil claim, borrowed the money or won it at a casino.
[93]. I disagree. While it is not inconceivable, civil claims are not typically paid in cash. If the source of the money were legitimate, there would be no reason for Mr. Mohamed not to have put it in the bank; we know from the seized documents that he had a bank account. Further, the Air Jordan box and the two bags in which the lion’s share of the cash was found all tested positive for cocaine.
[94]. There was no evidence about the denominations of the bills that were found or how many bills were found. Nonetheless, the evidence I have referred to above, particularly when considered in conjunction with the cocaine wrapper Mr. Mohamed was seen depositing in a dumpster on October 17th, his many short duration meetings with people in cars, and the gun found in the living room of the apartment, satisfies me that the only reasonable inference is that the money was obtained or derived from the commission of an indictable offence and that Mr. Mohamed was aware of this.
[95]. I find Mr. Mohamed guilty on Count 3.
COUNTS 4 to 7: THE FIREARMS CHARGES
[96]. The report of Det. Joseph Meehan, which was admitted, concluded that the 9-mm handgun seized from 70 Landry was in firing condition, that it was a “restricted firearm” as defined in s. 2 of the Criminal Code and that the cartridges seized with it were “ammunition” as defined in Section 84 of the Criminal Code.
[97]. The gun was found by Det. Cox. Det. Cox said he saw an open Louis Vuitton man purse on the couch in the living room of the apartment. Det. Cox said a loaded handgun with a magazine in the gun was inside the bag.
[98]. I acknowledge the defence argument that Mr. Mohamed had not been seen with the Louis Vuitton bag during the police surveillance. Nonetheless, the bag with the gun in it was open. The bag was in the living room. Det. Cox described the bedroom of the apartment where Mr. Mohamed was found as being just off to the side of the living room.
[99]. Mr. Mohamed was the only person in the apartment.
[100]. Documents identifying Mr. Mohamed and linking him to the apartment were found in the apartment. There was evidence linking Mr. Mohamed to drug trafficking, including the kilogram wrapper he threw in the dumpster. A large amount of cash was hidden in the apartment. Mr. Mohamed had property he might have wanted to protect. He might also have wanted to protect himself.
[101]. In my view, it is not reasonable to infer that if another person had been in the apartment, they would have forgotten to take their loaded firearm with them when they left or that they would have left their loaded firearm in Mr. Mohamed’s apartment without his knowledge.
[102]. For these reasons, I am satisfied, beyond a reasonable doubt, that the only reasonable inference from all of the evidence is that Mr. Mohamed had both knowledge of and control over the loaded firearm.
[103]. It is admitted that Mr. Mohamed did not have a licence to possess the gun.
[104]. For these reasons I find Mr. Mohamed guilty of counts 4 and 7.
[105]. I am satisfied, beyond a reasonable doubt, that the firearm, which was loaded and found in an open purse on a couch in an apartment living room, was stored in a careless manner, contrary to s. 86(3) of the Criminal Code.
[106]. Consequently, I find Mr. Mohamed guilty of count 5.
[107]. In light of all of the evidence, including the kilogram wrapper thrown in the dumpster and the large amount of cash hidden in the apartment, I am also satisfied, beyond a reasonable doubt, that Mr. Mohamed possessed the firearm for a purpose dangerous to the public peace contrary to s. 88(2) of the Criminal Code.
[108]. Consequently, I find Mr. Mohamed guilty of count 6.
DISPOSITION
[109]. In conclusion, I find Mr. Mohamed NOT GUILTY of counts 1 and 2 and GUILTY of counts 3, 4, 5, 6 and 7.
[110]. The matter is adjourned to the assignment court on December 8, 2023 at 9:30 a.m.
Justice Heather Williams
Released: November 24, 2023
COURT FILE NO.: 18-5488
DATE: 2023/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
– and –
ISMAIL MOHAMED
REASONS FOR decision
Released: November 24, 2023